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GEORGE S. GOLDBERG v. STATEWIDE EXCAVATORS (05/27/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


May 27, 1968

GEORGE S. GOLDBERG, AS EXECUTOR OF FREDERICK C. BERNHARDT, DECEASED, APPELLANT,
v.
STATEWIDE EXCAVATORS, INC., ET AL., RESPONDENTS

In an action to recover damages for personal injuries and wrongful death, the appeal is from a judgment of the Supreme Court, Nassau County, dated November 1, 1967, in favor of defendants upon the trial court's dismissal of the complaint at the close of plaintiff's case.

Beldock, P. J., Christ, Rabin, Benjamin and Martuscello, JJ., concur.

No questions of fact were considered on this appeal. Defendants' truck became disabled at about 2:00 or 2:30 p.m. at the New Hyde Park entrance ramp of the Long Island Expressway on July 29, 1963. It was brought to a halt on a paved portion of the ramp about three feet north of the northernmost traffic lane of the expressway about 150 feet short of the end of the entrance strip. At about midnight the right front wheel of the automobile driven by the decedent collided with the left rear of the truck. There are no known witnesses to the accident. There was evidence in the case from which a jury might have found that defendants were negligent in not having brought the vehicle to a halt on that portion of the shoulder of the entrance ramp which was of Belgian block construction. It could likewise have found negligence in the manner of placement of reflectors. Additionally, the failure to timely remove the vehicle raises questions of common-law negligence. (See Brown v. McCullough, 240 App. Div. 381, 382, affd. 265 N. Y. 652; Johnson v. Budine, 20 A.D.2d 843; Di Prisco v. Madison Trucking Corp., 277 App. Div. 843.) The question of proximate cause was similarly one for the jury. (Cf. Van Horn v. Messina, 3 A.D.2d 918, affd. 4 N.Y.2d 884; Noseworthy v. City of New York, 298 N. Y. 76.) Similarly, it cannot be held that the decedent was guilty as a matter of law of contributory negligence, as there are possible hypotheses under which fault would not necessarily be imputed to him. (Cf. Paul v. Staten Is. Edison Corp., 2 A.D.2d 311, 313; Verdino v. Hayes, 10 A.D.2d 978, 979.)

Disposition

Judgment reversed, on the law, and new trial granted, with costs to abide the event.

19680527

© 1998 VersusLaw Inc.



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