Swain v. Gianone

282 A.D. 966, 125 N.Y.S.2d 779

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 30, 1953
• Status: Published

Opinion

In an action to recover damages for the wrongful death of plaintiff’s intestate, judgment in favor of the plaintiff for $10,357.89, unanimously affirmed, with costs. In our opinion, the verdict is supported by sufficient evidence. While the burden of proving defendants’ negligence and the proximate cause of the accident was on the plaintiff, those essential elements may be established by circumstantial as well as by direct evidence. It is enough to show facts and conditions from which the negligence of the defendants and the causation of the accident by that negligence may be reasonably inferred (Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1), and in order to establish defendants’ negligence, plaintiff was not required to exclude or eliminate every other possible cause (Rosenberg v. Schwartz, 260 N. Y. 162), or point out the precise act or omission which caused the injury (White v. Lehigh Val. R. R. Co., 220 N. Y. 131). The evidence in the case at bar was sufficient to justify the jury in finding that plaintiff’s intestate was struck and run over by the truck driven by the defendant Salvatore Gianone, Jr., and that the accident was caused by that defendant’s negligence in failing to exercise the vigilance required of a reasonably prudent person under the circumstances disclosed. (Of. Allen v. Stokes, 260 App. Div. 600; Lowy v. Green, 272 App. Div. 238, and Gutierrez v. Public Service Interstate Transp. Co., 168 P. 2d 678.) Present - — Nolan, P. J., Adel, Wenzel, MacCrate and Beldock, JJ.