Sacks v. Charles Noeding Trucking Co.

Appellate Division of the Supreme Court of New York

Sacks v. Charles Noeding Trucking Co.

276 A.D.2d 1033

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

DecidedMarch 27, 1950

StatusPublished

This text of 276 A.D.2d 1033 (Sacks v. Charles Noeding Trucking 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.

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Sacks v. Charles Noeding Trucking Co., 276 A.D.2d 1033 (N.Y. Ct. App. 1950).

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Opinion

Carswell, Acting P. J., Johnston, Sneed and MaeCrate, JJ., concur; Wenzel, J., dissents and votes to affirm, with the following memorandum: The complaint was properly dismissed. The plaintiff repeatedly stated that he did not know how the accident came about. His only other witness as to the occurrence testified that while the plaintiff stood at the center of the rear of his truck, about to push some merchandise thereon, he was struck by the mudguard of the defendant’s Mack truck but that the said Mack truck did not strike the plaintiff’s truck, and stopped almost immediately six inches from and parallel to the plaintiff’s truck, with its front at least four and one-half feet beyond the tailboard of the said truck. It was a physical impossibility for the accident to have happened in this fashion. If the plaintiff stepped backward into the defendant’s truck as it was passing, which is the only other possibility presented by the evidence, the negligence which brought about the happening of the accident was his.

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Carswell, Acting P. J., Johnston, Sneed and MaeCrate, JJ., concur; Wenzel, J., dissents and votes to affirm, with the following memorandum: The complaint was properly dismissed. The plaintiff repeatedly stated that he did not know how the accident came about. His only other witness as to the occurrence testified that while the plaintiff stood at the center of the rear of his truck, about to push some merchandise thereon, he was struck by the mudguard of the defendant’s Mack truck but that the said Mack truck did not strike the plaintiff’s truck, and stopped almost immediately six inches from and parallel to the plaintiff’s truck, with its front at least four and one-half feet beyond the tailboard of the said truck. It was a physical impossibility for the accident to have happened in this fashion. If the plaintiff stepped backward into the defendant’s truck as it was passing, which is the only other possibility presented by the evidence, the negligence which brought about the happening of the accident was his.

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Bluebook (online)

276 A.D.2d 1033, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sacks-v-charles-noeding-trucking-co-nyappdiv-1950.