Penner v. Central School District No. 1

40 A.D.2d 883, 337 N.Y.S.2d 30, 1972 N.Y. App. Div. LEXIS 3560

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 1, 1972
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court, entered November 10, 1971 in Mqntgomery County, upon a verdict rendered at Trial Term, in favor of defendant, and from an order of said court, entered November 10, 1971, which denied plaintiff’s motion to set aside the verdict. Appellant was 884 40 APPELLATE DIVISION REPORTS, 2d SERIES injured while riding as a passenger in a vehicle owned and operated by respondent Filmer when it collided head on with a school bus at an intersection. The accident occurred on January 22, 1970, a bright, windy, winter morning, while the Filmer vehicle was negotiating a right-hand turn. The respective locations of the two vehicles with respect to the center line of the highway is in sharp dispute. The jury resolved this issue finding respondent Filmer negligent and awarding appellant damages against him, but exonerating respondents school district and driver Holtz. Appellant contends the admission into evidence of the report of an investigation of the accident made by the County Investigator in the Sheriff’s Department was crucial on the issue of liability. In particular, she contends the investigator’s designation of the point of impact in this report constitutes reversible error (Mandzych v. Karl, 33 A D 2d 786; Toll v. State of New York, 32 A D 2d 47). The investigator was at the scene shortly after the happening of the accident and before either vehicle was moved. He made a number of measurements and observations and recorded them in the form of a diagram of the scene of the accident, a procedure approved by this court on another occasion (Lee v. Be Carr, 36 A D 2d 554). While his conclusion as to the point of impact was improperly admitted as part of the report, there was sufficient other evidence, including photographs taken at the scene, to support the verdict of the jury. We find no merit to other issues raised by appellant. Judgment and order affirmed, without costs. Staley, Jr., J. P., Sweeney, Kane and Reynolds, JJ., concur; Greenblott, J., concurs in the result.