222 A.D. 310 | N.Y. App. Div. | 1928
In February, 1927, Mr. Grier and his wife were driving westerly down a rather steep grade called Bridgeville hill. The surface of the road was icy and slippery. His car skidded, turned about and went into the ditch on the northerly, that is, the right-hand side of the road. Plaintiff, shortly thereafter, and shortly before ten p. m., saw Grier's car in the ditch and pulled it out with his car. Grier’s car was backed a short way down the hill and thus stood facing easterly or up the hill and plaintiff’s car stood facing down the hill; both cars were on the northerly side of the road and only partly on the macadam. The defendant’s truck was going westerly down this hill. The track skidded and struck the plaintiff’s car, causing the damage complained of. The defendant was not present at the time of the accident. His truck was being driven by his chauffeur; for convenience I shall refer to him as the defendant.
The complaint specifies no negligence whatever. The allegation is that “ the defendant was operating his said automobile * * * in such a careless, negligent and unlawful manner that he ran into the car of this plaintiff which was standing on plaintiff’s right of the highway.” In the bill of particulars it is charged that
Before discussing this charge of negligence we observe that there was no defect in the truck or any of its parts alleged or proven. It is not alleged, but there is some testimony that the chains on defendant’s truck were in bad condition. But it is common knowledge to those who drive cars that chains are valueless to protect against skidding when once skidding has started; if the wheels are locked and the surface of the road is so slippery that there is no traction between the surface of the wheel and the surface of the road, chains are valueless. Also in the charge there is nothing to indicate that the condition of the chains was suggested to the jury as a ground of negligence.
We return then to the one charge of negligence. The court charged the jury that the highway was icy, the grade was steep and the highway had turns in it. It said: “ There seems to be no dispute but that the car did skid; ” it is undisputed that the brakes were applied, with the result that the truck did skid. These “ are facts which you have a right to take into consideration, together with all the other conditions which existed upon this highway at that particular time and place in determining whether or not the defendant was negligent in the operation of the truck.” These are the sole circumstances which the court called to the attention of the jury to be considered as the grounds for finding the defendant negligent. The question is: Was the defendant negligent because he tightened the brakes and if so was that negligence the proximate cause of the accident? The defendant is not chargeable with the condition of this road, nor is he chargeable with any further duty than to use reasonable care to avoid doing injury to this plaintiff’s caí'; and this reasonable care must be measured by the surrounding circumstances. He was driving down this grade in the night time, on the surface of a road which was so slippery that Grier a few
The judgment should be reversed for failure of proof of negligence on the part of the defendant which was the proximate cause of the accident.
Cochrane, P. J., and Hinman, J., concur; Davis and Whitmyer, JJ., dissent.
Judgment reversed on the law and facts and new trial granted, with costs to the appellant to abide the event.