| N.Y. Sup. Ct. | Feb 6, 1931
On and prior to June 9, 1930, the defendant was the owner of an automobile, which he permitted his son William to operate when he desired. On the evening of June 8, 1930, with
The complaint charges that the driver of the car was negligent in the manner in which he operated the same and that the car was equipped with defective brakes at the time of the accident, and that the defendant was negligent in permitting the car to be operated while in such a condition. There was no allegation of any defect in the steering apparatus of the car. Defendant interposed an answer denying the material allegations of the complaint.
Upon the trial the plaintiff offered no evidence that the braking mechanism of the car was, in fact, defective, or that any defect in the brakes was a proximate cause of the accident, nor did the plaintiff establish that the defendant knew that the car was being used by his son on the occasion in question.
Plaintiff swore the witness Kessler, who was riding on the front seat with the driver. Kessler testified that “ he just saw him turn
Plaintiff sought to show that four or five days following the accident the defendant stated to the witness Kessler that he knew the brakes were defective. Objection was interposed by the defendant and sustained. The plaintiff took an exception. The case went to the jury, which returned a verdict in favor of the defendant for no cause for action.
The plaintiff now moves to set aside the verdict and for a new trial upon the pertinent grounds contained in section 549 of the Civil Practice Act and upon the aforesaid exceptions.
The person accepting an invitation to ride takes the car as he finds it and no duty of inspection rests upon the owner and operator.
An owner of an automobile which is in a dangerous and defective condition would be hable to an invitee or licensee only if he knew of the dangerous condition; realized that it involved an unreasonable risk; believed that the invitee or licensee would not discover the condition or realize the risk, and failed to warn him of the condition and the risk involved. (Flaherty v. Helfont, 123 Me. 134" court="Me." date_filed="1923-09-20" href="https://app.midpage.ai/document/flaherty-v-helfont-4939409?utm_source=webapp" opinion_id="4939409">123 Me. 134; 122 Atl. 180, 182; Tannahill v. Depositors’ Oil & Gas Co., 110 Kan. 254" court="Kan." date_filed="1922-01-07" href="https://app.midpage.ai/document/tannahill-v-depositors-oil--gas-co-7905696?utm_source=webapp" opinion_id="7905696">110 Kans. 254; 203 Pac. 909, 912; Foster v. Farra, 243 id. 778, 781; 42 C. J. § 599, p. 897; Patnode v. Foote, 153 A.D. 494" court="N.Y. App. Div." date_filed="1912-11-13" href="https://app.midpage.ai/document/patnode-v-foote-5226320?utm_source=webapp" opinion_id="5226320">153 App. Div. 494, 496; Donovan v. Garvas, 121 Misc. 24" court="N.Y. Sup. Ct." date_filed="1923-06-15" href="https://app.midpage.ai/document/donovan-v-garvas-5418317?utm_source=webapp" opinion_id="5418317">121 Misc. 24; MacPherson v. Buick Motor Co., 217 N. Y, 382, 388, 391; Higgins v. Mason, 255 id. 104; Vehicle & Traffic Law, § 15, as amd. by Laws of 1930, chap. 576.)
Defendant contends that in the state of the record the evidence as to the inability of the driver to move the steering wheel was properly stricken out as not being within the issues framed by the pleadings, and that the evidence as to the condition of the brakes was properly excluded for the reason that there was no proof that the brakes were, in fact, defective, or, if defective, that such defect was a proximate cause of the accident. Defendant’s objection did not include lack of foundation. The proposed evidence was objected to as being incompetent, immaterial and irrelevant. At the time this evidence was being offered the court’s attention was momentarily diverted in giving some instructions relative to the impaneling of a jury; the objection was sustained, the court supposing that plaintiff was asking to relate a conversation between the witness and the driver of the car, and it was not until after the rendition of the verdict that the court understood to the contrary.
Plaintiff offered no evidence to the effect that a defective condition of the brakes was a provoking cause of the accident.
The real cause of the accident was the speed at which the driver attempted to negotiate the said curve. He never reduced, or attempted to reduce, the speed of the car before reaching the curve. Whether the brakes were or wére not defective was not disclosed by any application or attempted application thereof. The witness Kessler merely said he saw the driver’s foot moving towards the brake pedal. The car was traveling so fast that, when the driver attempted to make the right-angle turn, the rear of it slewed around and the car overturned. The evidence was perfectly clear that there was negligence in the operation of the car which was a proximate cause of the accident.
The serious question in the case was the contributory negligence of the plaintiff. It is quite apparent that the jury found the driver of the car negligent and plaintiff guilty of contributory negligence. Plaintiff was familiar with the road and was aware that the driver intended to coast down the hill. He did not protest. With a knowledge of these facts and, without taking a single precaution for his own protection, plaintiff went to sleep, relying upon the ability of the driver to bring the car safely to the bottom of the hill. The jury properly found that this was a contributorily negligent thing to do. (Joyce v. Brockett, 205 A.D. 770" court="N.Y. App. Div." date_filed="1923-06-19" href="https://app.midpage.ai/document/joyce-v-brockett-5269170?utm_source=webapp" opinion_id="5269170">205 App. Div. 770, 773.)
The evidence offered to show knowledge upon the part of the defendant as to the defective condition of the brakes was improperly excluded, but in view of the fact that no attempt was made to apply the brakes at the time of the accident, the error was harmless. The evidence as to the steering wheel was properly stricken out as not within the pleadings and on the further ground that it was not made to appear that the cause of the driver’s inability to turn the steering wheel was due to a defect in the braking mechanism.
Motion to set aside the verdict is denied.
Ordered accordingly.