Opinion
January 14, 1971
Appeal from a judgment of the Supreme Court, entered October 28, 1968 in Montgomery County, upon a verdict rendered at a Trial Term, in favor of the defendants dismissing the complaint. On October 14, 1963 at about 3:30 A.M., plaintiff was operating a tractor-trailer in a westerly direction in the right lane of the New York State Thruway near Amsterdam when he collided with the rear end of a tractor-trailer operated by defendant Truax, and owned by defendant Tinagero. According to plaintiff he had been traveling at a speed of about 60 miles per hour, when he saw a patch of fog, whereupon he slowed down to about 35 to 40 miles per hour, and, upon entering the fog, he saw a dark object stopped on the highway which he tried to avoid but was unable to do so. He testified that he saw no lights or reflectors on defendant's vehicle. According to defendant Truax, he was driving along at a speed of about 40 to 45 miles per hour when he was struck from behind; his running lights were on and it was a clear, dry night. Two State troopers testified that they arrived at the accident scene shortly after the accident; that it was a clear night with no fog; that the distance between the point of impact and the point where the vehicles stopped was about 591 feet; that all lights on defendant's vehicle were working including the lights on the rear of the vehicle; and that metal debris, including parts of plaintiff's tractor transmission, was on the highway about 300 feet in the rear of where the vehicles stopped. The testimony of plaintiff as to the occurrence of the accident, particularly with reference to the existence of fog in the area, was in conflict with the testimony of the other witnesses at the trial. His accident report made on April 30, 1964 indicated that it was a "heavy foggy evening" thus conflicting with his own testimony of "a light wisp of fog going across the road". All of this, coupled with his testimony as to his speed and that the other vehicle was stopped, and the troopers' testimony of the distance between the point of impact and where the vehicles came to rest and that his transmission was knocked out of his tractor by the impact, could well have caused the jury to reject all of his testimony as incredible. On this record, we could not say that the verdict of the jury was against the weight of the evidence. There was no error in the trial court's refusal to grant plaintiff's request to charge in view of the form in which it was presented. Judgment affirmed, without costs. Herlihy, P.J., Aulisi, Staley, Jr., Cooke and Sweeney, JJ., concur.