Opinion
June 26, 1928.
Appeal from the Municipal Court, Borough of Manhattan, Fifth District.
William H. Freedman, for the appellant.
Frederick Mellor, for the respondent.
The testimony offered by the plaintiff is to the effect that while his car was standing at the curb of West Seventy-ninth street, which runs somewhat at a grade, defendant's sedan car, with its windows so closed that an outsider was not able to reach the brake, rolled down an incline and damaged plaintiff's car. From these facts there is surely a prima facie inference that the defendant's car was negligently parked, either without brakes set or with defective brakes, quite apart from the neglect to take other possible precautions. It was, therefore, error to dismiss the complaint at the close of plaintiff's case.
Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.
All concur; present, BIJUR, LEVY and CRAIN, JJ.