SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
May 21, 1968
ROSEMARIE E. RITSON ET AL., RESPONDENTS,
COLOSSAL TRANSPORTATION LTD., ET AL., APPELLANTS, ET AL., DEFENDANT
Herlihy, J. P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by the court.
Memorandum By The Court. Appeal by the defendant corporation from an order of Special Term denying its motion for summary judgment dismissing the complaint herein as against it. The action results from an automobile accident which happened when the defendant Maresca traveling north overtook the appellant's truck on a two-lane highway and as he was passing the truck in the lane for south traffic struck the plaintiff's south bound car head-on. At an examination before trial Maresca testified that he made a certain signal with his headlights prior to passing and that the truck driver returned said signal which to Maresca signified that there was no traffic approaching from the opposite direction. The fact of whether or not the alleged signaling actually occurred is for the jury and, if so, whether such act on the part of the driver of the truck constituted negligence.
Order affirmed, with $10 costs.
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