Halvorsen v. W. T. Mitchell Trucking Corp.

242 A.D. 686

Opinion

Judgment unanimously affirmed, with costs. The court correctly charged the jury that the sMdding of the truck in and of itself was neither negligence nor evidence of negligence. The driver of the truck, however, testified that the roads were so slippery on the morning in question that it was not safe to' be on the road and he finally telephoned defendant’s superintendent that he was unable to make Ms deliveries because of such conditions. Under these circumstances, we are of .the opinion that the jury might have found that the driver was negligent in going down the hill where the sMdding took place. WMle the hospital records were improperly received in evidence, we tMnk the error did not prejudice the defendant. These records did not materially go beyond the testimony given by plaintiff’s physician, and the defendant did not dispute plaintiff’s injuries. Young, Kapper. Carswell and Tompkins, JJ., concur; Lazansky, P. J., concurs in result.