Szablewski v. Michael

262 A.D. 801, 28 N.Y.S.2d 163, 1941 N.Y. App. Div. LEXIS 5911

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 7, 1941
• Status: Published

Opinion

Judgment reversed on the law and facts and a new trial granted, with costs to the appeEant to abide the event. Memorandum: There was evidence that the plaintiff was sitting on the step adjacent to the concrete driveway, to the knowledge of the defendant; when she started to back her car over the driveway into the street; that she gave no warning to the plaintiff of her intention to back the car; that the car struck the plaintiff causing the injuries complained of. Upon these facts the jury could have found that the defendant was guilty of negligence which was a producing cause of the accident. Even if the plaintiff was a bare Ecensee, nevertheless, under the circumstances, the defendant owed him the duty of reasonable care. (Vaughan v. Transit Development Corporation, 222 N. Y. 79, 83, and cases cited.) There is some evidence tending to estabHsh that the plaintiff was an invitee of the defendant’s son. (Bowers v. City Bank Farmers Trust Company, 282 N. Y. 442; Donohue v. Erie County Savings Bank, 285 N. Y. 24.) All concur. (The judgment dismisses plaintiff’s complaint at the close of the ease in an automobile negligence action.) Present — Crosby, P. J., Cunningham, Taylor, Dowling and McCum, JJ.