Frankel v. Railway Express Agency, Inc.

254 A.D. 797, 4 N.Y.S.2d 247, 1938 N.Y. App. Div. LEXIS 7650

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 11, 1938
• Status: Published

Opinion

■ — ■ Appeal from an order of the Schenectady County Court entered in the office of the clerk of that county reversing a judgment of no cause of action entered in favor of the defendant in the City Court of the City of Schenectady, and granting a new trial. The action was brought to recover damages to plaintiff’s car caused by the alleged negligence of the defendant. Plaintiff’s car was parked on the north side of Jay street, a one-way street in the city of Schenectady, immediately in the rear of another automobile similarly parked. The trial court was justified in finding that plaintiff’s husband, the driver of the car, drove it out into the line of traffic and, while the car was still at an angle with the roadway, was struck by a truck driven by defendant’s employee; that when plaintiff’s driver started to drive the car from the curb defendant’s car was about fifty feet in the rear, moving at a speed of eleven to fifteen miles per hour; that plaintiff’s driver drove from the curb in front of defendant’s track suddenly and without warning, and the collision occurred. The evidence warranted the finding that the driver of plaintiff’s car was guilty of contributory negligence. Order reversed, on the law and facts, with costs in this court and in the court below, and judgment of the City Court reinstated. Hill, P. J., Rhodes, Crapser, Bliss and Heffeman, JJ., concur.