Opinion
May 5, 1948.
Appeal from County Court of Schenectady County.
Present — Hill, P.J., Brewster, Foster, Russell and Deyo, JJ.
Plaintiff claimed that his automobile left the highway because it became entangled with a telephone wire which the defendant carelessly permitted to remain loose and dangling in the highway. The jury could find from the evidence however that plaintiff's car left the highway before it came in contact with the wire, and that it was the collision between his car and a telephone pole that caused the wire to break. The doctrine of res ipsa loquitur was not applicable, since the jury evidently resolved the disputed fact of causal relation in favor of the defendant, and in any event the claim of its application was not seasonably raised. The report of the accident, assuming it to have been erroneously received in evidence, was not sufficiently prejudicial to require a reversal. There was nothing in it contradictory to conceded facts. Judgment and order unanimously affirmed, with costs.