Di Prisco v. Madison Trucking Corp.

277 A.D.2d 843

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 6, 1950
• Status: Published

Opinion

Plaintiff appeals from the dismissal of his complaint by the court after a jury disagreed. Plaintiff was a passenger in an automobile which collided with a truck allegedly in charge of defendant Burkin and owned by the other defendants, which truck was parked at 4:00 a.m. on the day of the accident on the Williamsburg Bridge. Plaintiff contended that there were no lights on the truck. Defendants have prevailed, apparently on the ground that the truck had reflectors as provided by law, and that as lights are not required for parking on city streets, no cause of action in negligence for parking the truck on the bridge without lights, during a period when the truck was out of order, could be established. While there was no requirement of law that the truck be lighted at the time, the jury was entitled to consider whether failure to light under the circumstances was common-law negligence. The complaint should not have been dismissed by the court, and a new trial must be ordered. On a new trial the evidence of the witness Fitzgibbon should be admitted on rebuttal, if proper foundation is laid, to challenge the credibility of the defendant and witness Burkin. Judgment unanimously reversed and a new trial ordered, with costs to the appellant to abide the event. Present — Peek, P. J., Glennon, Cohn, Callahan and Shientag, JJ.