13 A.D.2d 651 | N.Y. App. Div. | 1961
Order, entered on November 22, 1960, granting plaintiff’s motion, pursuant to rule 113 of the Rules of .Civil Practice, for summary judgment, unanimously reversed, on the law and on the facts, with $20 costs and disbursements to the appellant, and the motion by plaintiff for summary judgment denied, with $10 costs. Actions in negligence to recover for personal injuries do not readily lend themselves to disposition under the summary judgment rule. The question in such actions of whether or not the defendant was negligent is essentially one of fact (Gerard v. Inglese, 11 A D 2d 381, 383), and, other than in exceptional cases, the issue may only be decided on a trial. ( Cf. Di Sabato V. Soffes, 9 A D 2d 297.) Even though there may be no material dispute as to the speed and course of travel of an automobile preceding an accident, and as to the physical surroundings at the time of the accident, the question of whether or not the driver was at fault in what he did or failed to do is ordinarily one of fact, to be determined by a trier of the facts. (See Gerard v. Inglese, supra.) Upon the facts as set forth in the affidavits of the plaintiff and the driver of the defendant’s vehicle, there exists a question of fact as to whether or not the driver, under all the circumstances, acted with reasonable care, and, therefore, the plaintiff’s motion should have been denied. Concur — Botein, P. J., Breitel, Rabin, Eager and Bergan, JJ.
