Miller v. Perroni

249 A.D. 763, 291 N.Y.S. 977, 1936 N.Y. App. Div. LEXIS 5906

Opinion

Action to recover damages for personal injuries sustained by the plaintiff in a collision between a taxicab in which she was a passenger, owned and operated by defendant Perroni, and one owned and operated by defendant Longobardo. On reargument, judgment in favor of plaintiff unanimously affirmed, with costs. Appeal from the verdict dismissed; an appeal does not lie therefrom. Appeal from order denying the defendants’ motion to dismiss the complaint and to set aside the verdict and for a new trial dismissed on the ground that there is no such order in the record. The court adheres to the original determination of June 19, 1936. [See 248 App. Div. 761.] The defendants urge that the decision in Zwilling v. Harrison (269 N. Y. 461), decided by the Court of Appeals January 14, 1936, published after the decision on this appeal, is determinátive here. That case is readily distinguishable. In the Zwilling case the accident happened at noon on a congested city thoroughfare. It was caused by the truck’s having made a prohibited left turn when the Seligman car was following it at a distance of about six and one-half feet, traveling batween twelve and fourteen miles per hour. Here, however, the accident was caused by the sudden stopping of the first cab while the second car was trailing it at a distance of about twelve feet, going between twelve and fifteen miles per hour, at about eleven-thirty o’clock at night when it was raining and the street was in an icy condition. A question of negligence on these facts was clearly presented as to both drivers. Present — Lazansky, P. J., Hagarty, Davis, Adel and Taylor, JJ.