254 A.D. 684 | N.Y. App. Div. | 1938
Appeal by defendant from an order of the County Court, Westchester county, affirming, on appeal, judgments recovered in actions for negligence in the City Court of White Plains after trial before the court without a jury. Order reversed on the law and the facts, judgments of the City Court vacated and new trial ordered, with costs in this court and in the County Court. The verdicts finding the plaintiff DeRosa free from contributory negligence are clearly against the weight of the evidence. The preponderance of the evidence established that the defendant had the right of way. Plaintiff DeRosa testified that he was driving respondent Richards’ car at twelve and one-half miles an hour and that at that rate, with its brakes in good condition, he could stop the car within fifteen feet. He also testified that he saw the defendant’s car crossing his lane of travel, proceeding at the same rate of speed, about twenty feet in front of him. The pavement was dry. He did nothing to avoid the accident but turn his car to the left, and did not do that until the collision was imminent. It was his duty to stop his car and do what a careful, prudent driver would do to prevent the accident, and not proceed heedlessly in an undeviating line. (Maranta v. Wenzelberg, 241 App. Div. 420; Kosowsky v. Cotter, 227 id. 740; Wallace v. D’Aprile, 221 id. 402; Ward v. Clark, 232 N. T. 195, 198.) Lazansky, P. J., Carswell, Davis, Adel and Close, JJ., concur.
