Listengart v. Ell

Appellate Division of the Supreme Court of New York

Listengart v. Ell

30 A.D.2d 536, 291 N.Y.S.2d 271, 1968 N.Y. App. Div. LEXIS 4082

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 6, 1968

StatusPublished

This text of 30 A.D.2d 536 (Listengart v. Ell) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Listengart v. Ell, 30 A.D.2d 536, 291 N.Y.S.2d 271, 1968 N.Y. App. Div. LEXIS 4082 (N.Y. Ct. App. 1968).

Pincite

Opinion

In an action to recover damages for personal injuries, defendant appeals from a judgment of the Supreme Court, Nassau County, dated February 28,1967, in favor of plaintiff upon a jury verdict. Judgment reversed, on the law, and new trial directed, with costs to abide the event. The findings of fact are affirmed. It was error for the trial court to charge the jury that defendant had the burden of proof by a preponderance of the evidence that the collision between the vehicles occurred because of defective brakes on defendant’s automobile which could not have been discovered by defendant before the collision. Under the doctrine of Pfaffenbach v. White Plains Express Corp. (17 N Y 2d 132), the burden of going forward with proof shifts to the defendant to explain that the cause of the accident was due to conditions beyond his control, once the plaintiff establishes that there is a reasonable inference that -the collision occurred due to the defendant’s fault. On the whole case, however, the burden of proof remains on the plaintiff to establish the negligence of the defendant. The charge was excepted to by defendant’s counsel and a correct charge was requested by him. Under these circumstances, a new [537]*537trial is required. Beldock, P. J., Christ, Hopkins, Benjamin and Munder, JJ., concur.

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In an action to recover damages for personal injuries, defendant appeals from a judgment of the Supreme Court, Nassau County, dated February 28,1967, in favor of plaintiff upon a jury verdict. Judgment reversed, on the law, and new trial directed, with costs to abide the event. The findings of fact are affirmed. It was error for the trial court to charge the jury that defendant had the burden of proof by a preponderance of the evidence that the collision between the vehicles occurred because of defective brakes on defendant’s automobile which could not have been discovered by defendant before the collision. Under the doctrine of Pfaffenbach v. White Plains Express Corp. (17 N Y 2d 132), the burden of going forward with proof shifts to the defendant to explain that the cause of the accident was due to conditions beyond his control, once the plaintiff establishes that there is a reasonable inference that -the collision occurred due to the defendant’s fault. On the whole case, however, the burden of proof remains on the plaintiff to establish the negligence of the defendant. The charge was excepted to by defendant’s counsel and a correct charge was requested by him. Under these circumstances, a new [537]*537trial is required. Beldock, P. J., Christ, Hopkins, Benjamin and Munder, JJ., concur.

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Bluebook (online)

30 A.D.2d 536, 291 N.Y.S.2d 271, 1968 N.Y. App. Div. LEXIS 4082, Counsel Stack Legal Research, https://law.counselstack.com/opinion/listengart-v-ell-nyappdiv-1968.