Larmer v. Boyd

• Citation: 202 A.D.2d 982,609 N.Y.S.2d 489
• Parties: Carlton E. LARMER and Audre V. Larmer, Appellants, v. Linda R. BOYD and Eulas G. Boyd, Respondents.
• Decision Date: 11 March 1994
• Court: New York Supreme Court Appellate Division

Page 489

609 N.Y.S.2d 489

202 A.D.2d 982

Carlton E. LARMER and Audre V. Larmer, Appellants, v. Linda R. BOYD and Eulas G. Boyd, Respondents.

Supreme Court, Appellate Division,

Fourth Department.

March 11, 1994.

Kenny and Kenny by Michael Kenny, Syracuse, for appellants.

Hancock and Estabrook by David Linger, Syracuse, for respondents.

Before DENMAN, P.J., and PINE, FALLON, CALLAHAN and DAVIS, JJ.

MEMORANDUM:

We conclude that the jury verdict is against the weight of the evidence. Plaintiffs brought this action to recover damages for personal injuries sustained by plaintiff Carlton E. Larmer (plaintiff) when the vehicle he was operating was struck by a vehicle operated by defendant Eulas G. Boyd (defendant) at the intersection of Minoa-Bridgeport Road and State Route 298 in the Town of Manlius. The record establishes that defendant stopped for a flashing red light, looked to his left, then to his right, and then to his left, and proceeded into the intersection, striking the Larmer vehicle, which had the right of way. When asked whether he observed any vehicle approaching, defendant testified:

"I am confused. Exactly how I may have missed the vehicle? I think I either--because I know I looked left first and then I looked right, and as I looked right, I could have either focused down the road past the vehicle, and actually not seen the vehicle at all, or I could have seen it and judged it to be far enough that the intersection would be safe by the time I got through it. It was four years ago. I am not even certain if I even saw the vehicle and thought it too far to be a danger, or if I was looking past the vehicle, and it had already left my area of vision."

Defendant testified that he did not see plaintiff's vehicle until "a split second" before the collision. Defendant's actions constituted negligence, which conclusion is further substantiated by defendant's admitted violation of the Vehicle and Traffic Law (see, Bartholomew v. New York Tel. Co., 35 A.D.2d 767, 768, 315 N.Y.S.2d 71).

Judgment unanimously reversed on the law with costs and new trial granted.