Opinion
September 28, 1961
Order, entered on February 28, 1961, unanimously reversed, on the law and on the facts, with $20 costs and disbursements to the appellant, and motion by plaintiffs for summary judgment denied, with $10 costs. The record discloses triable issues, namely, whether or not the conduct of the defendant deviated from reasonable prudence and whether or not the plaintiffs are in any degree chargeable with contributory negligence. The plaintiffs, who had been passengers in defendant's taxi, claim that they were injured when defendant started the taxi up while they were alighting therefrom. By affidavit of defendant, however, it is averred that the plaintiffs, after they had alighted from the taxi, stood for some time adjacent to the vehicle on its right side with the front right and rear right doors open. According to defendant, they stood there arguing about who should pay the fare. The defendant, becoming impatient, started to get out of his vehicle, but before doing so, he says he set his emergency brake. He further says, "I do not know why my vehicle moved forward since I am certain that I set the emergency brake." The plaintiffs then were allegedly injured when the vehicle rolled forward, dragging them and throwing them to the ground. Under these circumstances, the motion for summary judgment should have been denied. ( Hajder v. G. G. Moderns, 13 A.D.2d 651.)
Concur — Rabin, J.P., Valente, McNally, Eager and Steuer, JJ.