Marinan v. Kronberger

255 A.D. 871, 8 N.Y.S.2d 119, 1938 N.Y. App. Div. LEXIS 5716

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 18, 1938
• Status: Published

Opinion

Plaintiffs’ intestate, riding in defendant’s automobile, was killed when the car struck a pole or stanchion at the intersection of Ocean parkway and Avenue Z, in the borough of Brooklyn. At the time of the collision the car was being operated by a stranger, defendant, the owner, being in the rumble seat. Plaintiffs’ intestate was in the front seat, with another passenger between him and the driver. The appeal is from a judgment dismissing the complaint at the close of plaintiffs’ case. Judgment affirmed, with costs. No opinion. Lazansky, P. J., Hagarty, Davis and Adel, JJ., concur; Taylor, J., dissents and votes for reversal and a new trial upon the ground that the proofs presented issues of fact for the jury upon the question of liability, this case being plainly distinguishable from Galbraith v. Busch (267 N. Y. 230), in which an automobile suddenly swerved from and left the highway. The case at bar involved the striking of a traffic stanchion in the highway.