Gallub v. Cirillo

272 A.D.2d 918

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 16, 1947
• Status: Published

Opinion

The appellants’ truck, because of engine trouble, stopped in the nighttime alongside the right-hand curb on Roosevelt Boulevard, in the city of Philadelphia. A truck driven by plaintiff’s intestate crashed into the rear of appellants’ truck, and a fire followed. The action is against the owner and the driver of the appellants’ truck to recover damages for the death of plaintiff’s intestate. Judgment, entered on the verdict of a jury in favor of plaintiff, reversed on the facts and a new trial granted, with costs to abide the event, on the ground that the verdict is against the weight of the evidence. Carswell, Johnston and Nolan, JJ., concur; Hagarty, Acting P. J., and Adel, J., concur in the reversal of the judgment but dissent as to the granting of a new trial and vote to dismiss the complaint, with the following memorandum: The evidence conclusively establishes the negligence of the deceased driver. Moreover, the oral testimony that the appellants’ truck was obscured from view because of a hill, until a following driver would reach a point within fifty or seventy-five feet of appellants’ truck, is incredible as a matter of law in view of the photographs and surveys and the testimony relating thereto.