Jump v. Jump

69 A.D.2d 947, 415 N.Y.S.2d 499, 1979 N.Y. App. Div. LEXIS 11711

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 19, 1979
• Status: Published

Opinions

Appeals from orders of the Supreme Court, entered February 6, 1978 in Chemung County, which set aside verdicts in favor of the defendant, rendered at a Trial Term, and granted a new trial. The infant plaintiffs were passengers in a car being operated by their mother, the defendant, on March 15, 1975, when the car first went off the highway on the passenger side in its direction of travel and then went across the highway and into a tree. The only eyewitnesses were the infant plaintiffs and the defendant and damages are sought for the personal injuries of the infants. The defendant testified that she was injured in the accident and cannot remember anything that occurred from the time she went to bed on the evening before the day of the accident until about two weeks later. The infant, Julie, testified that on March 15, 1975 she and her mother and sister were going to a 4-H meeting when the accident happened. The defendant was driving and the road conditions "were slippery, because it had rained and then snowed, and there was snow on it, slushy snow”. A small truck approached them from the opposite direction and after it had passed she felt the car jolt and move toward the right (passenger side) and thereafter she has no recollection of the movement of the car. The infant, Jeri, confirmed that at the time of the accident her mother was driving her and her sister to a 4-H meeting. It was cold and "snowing a little bit, and it was miserable”. She recalled the small truck approaching her vehicle from the opposite direction and passing, but she recalls nothing else about the events of the accident. The only other witness to testify in regard to the happening of the accident was a Deputy Sheriff who investigated the scene of the accident. He testified that the roads were difficult as to movement at the time of the accident and there was "a considerable amount of sludge and snow divots in the highway in that particular area.” He proceeded to the scene at not over 20 miles per hour. The vehicle had struck the tree and stopped on the east side of the highway and he found tire marks—skids that started about 300 feet northerly at a point about six to eight feet off the traveled portion of the west side of the highway. The highway itself was a standard, 27-foot wide road covered with snow on its edges. He testified that as to the highway shoulder on the west side where the automobile first left the road, it was a "snow embanked shoulder” and there were "numerous” ruts. Upon cross-examination the deputy affirmed that the road surface was covered with snow and that he had not noted on his official accident report form that the vehicle had skidded 300 feet before hitting the tree. Upon the foregoing evidence as to the happening of this accident, the question of negligence was submitted to the jury and it found no cause for action in favor of the defendant. The Trial Judge found that verdict to be against the weight of the evidence and set aside the verdicts, granting a new trial. It is well established that evidence of skidding and leaving the traveled portion of the highway on the driver’s own authorized lane of travel is some evidence of negligence and is sufficient to create an issue of fact for the jury to resolve (Coury v Safe Auto Sales, 32 NY2d 162). However, when there is some evidence of circumstances beyond the control of a driver, which would account for an accident without any negligence on the part of the driver, leaving the proper lane of travel or skidding is not conclusive evidence of negligence (Barraco v De Pew, 33 AD2d 816). There was no basis from the evidence herein which would give the Trial Judge a basis for exercising discretion in the interests of justice. There is nothing to establish that the verdicts were against the weight of the evidence and, accordingly, the verdicts must be reinstated. Orders reversed, on the law, without costs, and the verdicts reinstated. Greenblott, J. P., Kane and Herlihy, JJ., concur.