Larmer v. Boyd

202 A.D.2d 982, 609 N.Y.S.2d 489

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 11, 1994
• Status: Published

Opinion

—Judgment unanimously reversed on the law with costs and new trial granted. Memorandum: We conclude that the jury verdict is against the weight of the evidence. Plaintiffs brought this action to recover damages for personal injuries sustained by plaintiff Carlton E. Larmer (plaintiff) when the vehicle he was operating was struck by a vehicle operated by defendant Eulas G. Boyd (defendant) at the intersection of Minoa-Bridgeport Road and State Route 298 in the Town of Manlius. The record establishes that defendant stopped for a flashing red light, looked to his left, then to his right, and then to his left, and proceeded into the intersection, striking the Larmer vehicle, which had the right of way. When asked whether he observed any vehicle approaching, defendant testified: "I am confused. Exactly how I may have missed the vehicle? I think I either— because I know I looked left first and then I looked right, and as I looked right, I could have either focused down the road past the vehicle, and actually not seen the vehicle at all, or I could have seen it and judged it to be far enough that the intersection would be safe by the time I got through it. It was four years ago. I am not even certain if I even saw the vehicle and thought it too far to be a danger, or if I was looking past the vehicle, and it had already left my area of vision.” Defendant testified that he did not see plaintiffs vehicle until "a split second” before the collision. Defendant’s actions constituted negligence, which conclusion is further substantiated by defendant’s admitted violation of the Vehicle and Traffic Law (see, Bartholomew v New York Tel. Co., 35 AD2d 767, 768). (Appeal from Judgment of Supreme Court, Onondaga County, Elliott, J. — Negligence.) Present — Denman, P. J., Pine, Fallon, Callahan and Davis, JJ.