Miozzi v. Armstrong Coal Co.

Appellate Division of the Supreme Court of New York

Miozzi v. Armstrong Coal Co.

258 A.D. 1062, 17 N.Y.S.2d 642, 1940 N.Y. App. Div. LEXIS 8895

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

DecidedFebruary 5, 1940

StatusPublished

This text of 258 A.D. 1062 (Miozzi v. Armstrong Coal Co.) 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

Miozzi v. Armstrong Coal Co., 258 A.D. 1062, 17 N.Y.S.2d 642, 1940 N.Y. App. Div. LEXIS 8895 (N.Y. Ct. App. 1940).

Pincite

Opinion

Action for negligence resulting in wrongful death of plaintiff’s intestate, a boy fourteen and a half years of age. Order, as resettled, setting aside the .verdict of a jury in favor of the defendant, reversed on the law and the facts, with costs, motion denied, verdict reinstated, and judgment directed to be entered thereon, with costs. While we are in agreement with the finding of the learned Trial Term justice that negligence on the part of the defendant driver was established as a cause of the accident, we are of opinion that there was sufficient proof upon which the jury could find that the deceased was guilty of contributory negligence. The jury was entitled to believe the defendants’ version that this accident occurred immediately adjacent to the southeasterly corner of a shanty, between which and the railroad tracks to the east the corporate defendant’s truck was proceeding in a southerly direction, on a dirt roadway, to the point of the accident. The roadway was narrow and, of necessity, the right-hand side of the truck was in proximity to the easterly side of the shanty. While the driver testified that he did not see the boy until the latter was on his fender, he also testified that immediately prior to the accident he saw a flash come up and hit the bumper, that this flash was the boy, and that the boy came “ out in a quick flash.” The jury was entitled to find therefrom that the boy had come from behind the shanty without looking and at a quick pace. Contributory negligence could have been predicated upon the facts as found, that reasonable care on the part of a boy of deceased’s age required him to peer from behind the obstruction before proceeding or to walk away from the dangerous corner, in another or southerly direction. The reasons assigned by the trial court in its opinion in setting aside the verdict did not involve the credibility of witnesses, but, as the court stated, “ Any finding of contributory negligence must, therefore, have been arrived at wholly in conjecture and as a matter of stark speculation.” Lazansky, P. J., Hagarty, Adel and Taylor, JJ., concur; Carswell, J., concurs in result.

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Action for negligence resulting in wrongful death of plaintiff’s intestate, a boy fourteen and a half years of age. Order, as resettled, setting aside the .verdict of a jury in favor of the defendant, reversed on the law and the facts, with costs, motion denied, verdict reinstated, and judgment directed to be entered thereon, with costs. While we are in agreement with the finding of the learned Trial Term justice that negligence on the part of the defendant driver was established as a cause of the accident, we are of opinion that there was sufficient proof upon which the jury could find that the deceased was guilty of contributory negligence. The jury was entitled to believe the defendants’ version that this accident occurred immediately adjacent to the southeasterly corner of a shanty, between which and the railroad tracks to the east the corporate defendant’s truck was proceeding in a southerly direction, on a dirt roadway, to the point of the accident. The roadway was narrow and, of necessity, the right-hand side of the truck was in proximity to the easterly side of the shanty. While the driver testified that he did not see the boy until the latter was on his fender, he also testified that immediately prior to the accident he saw a flash come up and hit the bumper, that this flash was the boy, and that the boy came “ out in a quick flash.” The jury was entitled to find therefrom that the boy had come from behind the shanty without looking and at a quick pace. Contributory negligence could have been predicated upon the facts as found, that reasonable care on the part of a boy of deceased’s age required him to peer from behind the obstruction before proceeding or to walk away from the dangerous corner, in another or southerly direction. The reasons assigned by the trial court in its opinion in setting aside the verdict did not involve the credibility of witnesses, but, as the court stated, “ Any finding of contributory negligence must, therefore, have been arrived at wholly in conjecture and as a matter of stark speculation.” Lazansky, P. J., Hagarty, Adel and Taylor, JJ., concur; Carswell, J., concurs in result.

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Bluebook (online)

258 A.D. 1062, 17 N.Y.S.2d 642, 1940 N.Y. App. Div. LEXIS 8895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miozzi-v-armstrong-coal-co-nyappdiv-1940.