Pogozelski v. Dunk

Appellate Division of the Supreme Court of New York

Pogozelski v. Dunk

28 A.D.2d 901, 282 N.Y.S.2d 962, 1967 N.Y. App. Div. LEXIS 3536

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

DecidedJuly 10, 1967

StatusPublished

This text of 28 A.D.2d 901 (Pogozelski v. Dunk) 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

Pogozelski v. Dunk, 28 A.D.2d 901, 282 N.Y.S.2d 962, 1967 N.Y. App. Div. LEXIS 3536 (N.Y. Ct. App. 1967).

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Opinion

Beldock, P. J., Ughetta, Rahin and Nolan, JJ., concur; Benjamin, J., dissents and votes to reverse the judgments and to dismiss the complaint, with the following memorandum: This accident occurred on the New York Thruway, at night, in a blinding snowstorm, with visibility of only about 75 feet. Under those conditions, plaintiff drove his truck at a speed ranging between 20 and 30 miles per hour, and, so driving, ran into the rear of defendant’s truck. When the accident occurred, plaintiff was looking “ more towards the ground ”, since he could not see through the driving snow if he looked straight ahead; hence, he did not see the reflector lights on the rear of defendant’s truck until it was too late. Plaintiff said that defendant’s truck was stopped at the time of the accident; defendant said it was moving slowly and that the rear and top were lit up with seven lights. On this record, I think plaintiff was guilty of contributory negligence as a matter of law, and his complaint should be dismissed (Massey v. Matza, 11 A D 2d 36, affd. 13 N Y 2d 631).

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Beldock, P. J., Ughetta, Rahin and Nolan, JJ., concur; Benjamin, J., dissents and votes to reverse the judgments and to dismiss the complaint, with the following memorandum: This accident occurred on the New York Thruway, at night, in a blinding snowstorm, with visibility of only about 75 feet. Under those conditions, plaintiff drove his truck at a speed ranging between 20 and 30 miles per hour, and, so driving, ran into the rear of defendant’s truck. When the accident occurred, plaintiff was looking “ more towards the ground ”, since he could not see through the driving snow if he looked straight ahead; hence, he did not see the reflector lights on the rear of defendant’s truck until it was too late. Plaintiff said that defendant’s truck was stopped at the time of the accident; defendant said it was moving slowly and that the rear and top were lit up with seven lights. On this record, I think plaintiff was guilty of contributory negligence as a matter of law, and his complaint should be dismissed (Massey v. Matza, 11 A D 2d 36, affd. 13 N Y 2d 631).

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Bluebook (online)

28 A.D.2d 901, 282 N.Y.S.2d 962, 1967 N.Y. App. Div. LEXIS 3536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pogozelski-v-dunk-nyappdiv-1967.