Zeman v. Dewes

• Decision Date: 17 December 1970
• Citation: 35 A.D.2d 940,316 N.Y.S.2d 578
• Parties: Ralph ZEMAN, individually and as father of Benjamin Zeman, an infant, Plaintiffs-Respondents, v. Herbert DEWES, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 578

316 N.Y.S.2d 578

35 A.D.2d 940

Ralph ZEMAN, individually and as father of Benjamin Zeman an infant, Plaintiffs-Respondents, v. Herbert DEWES, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 17, 1970.

M. L. Lewis, New York City, for plaintiffs-respondents.

B. Meyerson, New York City, for defendant-appellant.

Before EAGER, J.P., and CAPOZZOLI, McGIVERN, STEUER and TILZER, JJ.

PER CURIAM.

Order, Supreme Court, Bronx County (Dollinger, J.), entered on August 17, 1970, granting plaintiffs' motion for summary judgment and directing an assessment of damages, in this personal injury action, unanimously reversed, on the law, without costs and without disbursements, and motion denied.

The defendant claims that he placed his transmission gear into reverse, but the car went forward instead of backing up and that the police found the gear lever in reverse position immediately after the accident. As against this contention plaintiffs assert that, while this explanation was reported by the defendant to the Department of Motor Vehicles, the defendant also stated in that report that he 'applied brake pedal and in so ding struck against both the brake and gas pedal'. Plaintiffs argue that this clearly shows that the defendant was negligent.

We are agreed that a strong case is made out by plaintiffs in support of their motion for summary judgment. However, '* * * even when there is no dispute as to the physical facts of the accident and when there is no claim of contributory negligence, * * * the unresolved issue still remains as to whether the defendant used such reasonable precautions to avoid the accident as would ordinarily be used by careful, prudent persons under like circumstances * * * and that question is essentially one of fact * * *. Evidence of the physical facts may establish negligence prima facie, but in such a case the court may seldom direct a verdict though the plaintiff's evidence is not contradicted or rebutted by the defendant. Whether negligence is established prima facie by direct or circumstantial evidence, the question as to whether the defendant was at fault in what he did or failed to do is ordinarily one of fact, to be determined by the jury, * * *'. (Gerard v. Inglese, 11 A.D.2d 381, at pp. 382, 383, 206 N.Y.S.2d 879, at p. 881) It is to be noted that, in the last cited case, the Court did sustain the granting of summary judgment on the peculiar factual situation there presented. (Also see: ...