73 A.D.2d 565 | N.Y. App. Div. | 1979
— Judgment, Supreme Court, Bronx County, entered September 28, 1978, awarding plaintiff Sandra Lopato $50,000 and apportioning liability at 51% to defendant Popkin and 49% to plaintiff Harold Lopato, unanimously reversed, on the law, with costs to abide the event, and the matter remanded for a new trial on all issues. Sandra Lopato, a passenger in an automobile driven by her husband Harold, suffered injuries when their car collided with a vehicle driven by defendant Popkin, who had rented his car from defendant Kinney. At trial, the parties gave conflicting versions as to how the accident occurred. Popkin testified that he was driving north on Blackstone Avenue at 11:00 p.m. on October 30, 1971 when he came to its intersection with West 239th Street. He stated that as he approached the intersection he made a full stop, obeying the traffic sign which was several feet from the corner, moved slowly up to the corner and that when he looked east on West 239th Street, his vision was blocked by two parked cars on that street. Defendant added that his vision was further impeded because at that point West 239th Street inclines steeply toward the east. He proceeded slowly into the intersection, at about five miles an hour, when the car driven by Lopato came up 239th Street at a speed of about 40 miles an hour and hit him across the passenger side about eight feet into the intersection. Popkin stated that as soon as he saw the Lopato car he jammed on his brakes, and was struck while standing still. On the other hand Harold Lopato testified that he was driving west on 239th Street at a maximum speed of 20 miles an hour, with his lights on, and that no traffic preceded him. He was aware that traffic on Blackstone Avenue was faced