De Martino v. Brooklyn & Queens Transit Corp.

258 A.D. 1072, 18 N.Y.S.2d 40, 1940 N.Y. App. Div. LEXIS 8946

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 19, 1940
• Status: Published

Opinion

In an action for damages for injuries alleged to have been caused by reason of the negligence of the appellant’s motorman in causing a street car to proceed while a truck was being driven alongside and between the street car and the curb, resulting in a collision at the rear of the street car, judgment for plaintiff reversed on the law and the facts, with costs, and complaint dismissed on the law, with costs. It was not negligence for the motorman to proceed even though the truck in question was alongside the trolley ear. If plaintiff’s witnesses are to be believed, the truck had proceeded to a place alongside the trolley car without incident, and there is no showing which warrahts the inference that the motorman might reasonably have anticipated that the driver of the truck would so negligently operate it as to cause it to come into contact with the rear of the trolley car. Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ., concur.