Dennenberg v. Yellin

242 A.D. 722

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1934
• Status: Published

Opinion

Order affirmed, with costs. Hill, P. J., Crapser, Bliss and Heffeman, JJ., concur; McNamee, J., dissents and votes to reverse the order and to reinstate the verdict on the ground that the plaintiff was violating at the time of the accident section 88, subdivision 3, of the Vehicle and Traffic Law and, therefore, was guilty of contributory negligence as a matter of law (Martin v. Herzog, 228 N. Y. 164; Kavanagh v. New York, O. & W. R. Co., 196 App. Div. 384, 389, 390; Concolino v. Kunzelman, 259 N. Y. 602; Connor v. Western N. Y. Motor Lines, 250 id. 165, 168, 169), and on'the further ground that the doctrine of the last clear chance does not apply for the reason that there is no proof that the defendant had actual knowledge of or recognized the peril of the plaintiff, and that there was time for the defendant to avoid the injuries and also because the plaintiff’s negligence was continuing at the time of the accident. (Panarese v. Union Railway Co., 261 N. Y. 233, 236, 238; Storr v. New York Central R. R. Co., Id. 348, 350, 351.)