Elliott v. Kohler

Appellate Division of the Supreme Court of New York

Elliott v. Kohler

286 A.D. 881, 142 N.Y.S.2d 424, 1955 N.Y. App. Div. LEXIS 4432

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 27, 1955

StatusPublished

This text of 286 A.D. 881 (Elliott v. Kohler) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Elliott v. Kohler, 286 A.D. 881, 142 N.Y.S.2d 424, 1955 N.Y. App. Div. LEXIS 4432 (N.Y. Ct. App. 1955).

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Opinion

Nolan, P. J., Schmidt and Murphy, JJ., concur; Wenzel and Ughetta, JJ., dissent and vote to affirm, with the following memorandum: Appellant had the burden of establishing respondent’s negligence and her own freedom from contributory negligence. She did neither. In our opinion it is contributory negligence as a matter of law for appellant to have embarked as a passenger in a car with two men, both of whom she knew to be intoxicated. If the accident occurred as she says it did, the proximate cause thereof was the opening of the ear door by the man sitting next to respondent, the driver, before the ear had stopped. Her version of the accident, however, is incredible as a matter of law. If she were sitting on the edge of the seat preparing to alight, as she testified, a sudden acceleration of the car would throw her backward and not forward out of the car and on her face. This is a physical law requiring no judicial interpretation.

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Nolan, P. J., Schmidt and Murphy, JJ., concur; Wenzel and Ughetta, JJ., dissent and vote to affirm, with the following memorandum: Appellant had the burden of establishing respondent’s negligence and her own freedom from contributory negligence. She did neither. In our opinion it is contributory negligence as a matter of law for appellant to have embarked as a passenger in a car with two men, both of whom she knew to be intoxicated. If the accident occurred as she says it did, the proximate cause thereof was the opening of the ear door by the man sitting next to respondent, the driver, before the ear had stopped. Her version of the accident, however, is incredible as a matter of law. If she were sitting on the edge of the seat preparing to alight, as she testified, a sudden acceleration of the car would throw her backward and not forward out of the car and on her face. This is a physical law requiring no judicial interpretation.

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Bluebook (online)

286 A.D. 881, 142 N.Y.S.2d 424, 1955 N.Y. App. Div. LEXIS 4432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elliott-v-kohler-nyappdiv-1955.