Lahr v. Tirrill
| Decision Date | 27 April 1937 |
| Citation | 274 N.Y. 112,8 N.E.2d 298 |
| Parties | LAHR v. TIRRILL (two cases). |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Actions by Maud D. Lahr, and by John B. Lahr, against Mabel C. Tirrill. From judgments of the Appellate Division (249 App.Div. 667, 291 N.Y.S. 269), which affirmed judgments of the Trial Term for plaintiffs, defendant appeals.
Judgments reversed, and complaint dismissed. Appeal from Supreme Court, Appellate Division, Third department.
Oscar J. Brown, of Syracuse, for appellant.
James A. Leary and Walter A. Fullerton, both of Saratoga Springs, for respondents.
Maud D. Lahr and her husband have brought actions against defendant, the former to recover damages for injuries received by her in an automobile accident, and the latter to recover for expenditures made by him for medical treatment for his wife, etc. The cases were tried together and resulted in a $4,000 verdict for the wife and a $1,000 verdict for the husband. Judgments for plaintiffs were affirmed by the Appellate Division by a divided court. Defendant rested at the close of plaintiffs' case without introducing any evidence. Motions for nonsuit and direction of verdict were made by defendant, but decision was reserved. After the jury rendered their verdicts, the motions were denied, as was a motion for a new trial under section 549 of the Civil Practice Act. The qustion presented is whether there was evidence of negligence on the part of defendant authorizing submission of the cases to the jury. We think there was not.
Plaintiff Maud D. Lahr, a resident of Round Lake, N. Y., and defendant, a resident of Williamsport, Pa., were old acquaintances. Defendant had been visiting at plaintiffs' home prior to the accident. At about 7 a. m. on January 9, 1933, Mrs. Lahr and defendant left Round Lake in defendant's Hudson sedan for Williamsport. Defendant operated the car and was an experienced and careful driver, and Mrs. Lahr occupied the front seat beside her. At the start of the trip, the weather was clear and the road dry. They proceeded through Schenectady along the highway, leading to Binghamton at the rate of about thirty miles per hour, when it started to snow and the road became slippery and slushy and later, icy. About twenty-five miles out of Schenectady defendant felt the car slew on a curve and asked Mrs. Lahr if she noticed it. At the suggestion of the latter, the speed of the car was reduced to twenty miles per hour and continued at that rate until just before the accident. Reaching a point about thirty-five miles out of Schenectady at around 8:30 a. m., while driving on a crowned macadam road about eighteen feet wide with dirt shoulders, defendant proceeded on the right-hand side of the road down a hill on a left-hand curve of approximately twenty-two degrees, without mishap. The curve in the road extended beyond the foot of the grade over which they had safely passed and up a hill to the southwest up a moderate grade. Mrs. Lahr testified that it was necessary and proper to increase the speed of the car to make this grade. Defendant put on the gas; the speed of the car increased to about thirty miles per hour before the foot of the hill was reached. At that speed the car proceeded a short distance up the hill, whereupon the rear end slewed slightly to the right, then the car skidded across the road to the left and back again to the right, struck a post in a guard rail, proceeded without slackened speed up the road about seventy-five feet to a dirt lane, and turned in. One of the front wheels of the car struck the root of a tree and the car turned over. Mrs. Hahr testified that she thought or felt that the brakes were applied. Her testimony was uncertain and conflicting on the point of the application of the brakes. They were applied, if applied at all, just before the car started to skid to the left or during the skid. The windshield wiper was working. The snow formed a light covering on the road, but there were no ruts or tracks and no traffic to interfere with defendant's operation of the car. Mrs. Lahr said that she operated a car herself and that defendant, on the occasion of the accident and under the conditions then obtaining, operated the car as she would have done under similar circumstances. Upon those facts it was left to the jury to guess and surmise that d...
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