Opinion
August 1, 1961
Present — Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ.
Plaintiffs appeal from judgments dismissing their complaints at the close of plaintiffs' case in an automobile negligence action. The plaintiff Employers Mutual Liability Insurance Company of Wisconsin sues to recover the property damage to the truck as the assignee of the owner, Rickerson Supply Company. On August 8, 1958, the plaintiff Burnash was the driver of a concrete mixer truck belonging to Rickerson Supply Company and delivering Ready Mix concrete to the property of defendant William Dunn, who was building houses thereon. In order to reach the site it was necessary to use a ramp and while the truck operated by the plaintiff was in the process of backing up, it tipped over on its right side, causing injuries to the plaintiff Burnash and property damage to the truck. The defendant James Di Lorenzo was an employee of the defendant Dunn. From the record it appears that when the plaintiff arrived at the site, he got out of his truck and made an inspection of the ramp and spoke to Di Lorenzo who allegedly told him the ramp was a little slippery but that other trucks had used it that morning and it appeared to be all right. With Di Lorenzo standing near the left front fender, the plaintiff re-entered the truck and with his left foot on the left fender and his right foot inside the cab operating the accelerator pedal and he himself facing the back of the truck, he started the operation which allegedly caused the truck to tip over. The complaint alleged as to the defendant Dunn that the ramp was inherently dangerous, not built in accordance with the statutes of the State of New York and maintained in a negligent manner. As to the negligence of the defendant Di Lorenzo, it is alleged that he failed to warn the plaintiff that the ramp was not safe, that it was built in violation of the statutes of the State of New York and that he failed to properly guide the plaintiff in the operation of his truck. As to the ramp, there is no showing of any negligence in its construction or violation of any statutory provisions. Plaintiff admits that he made a personal inspection of the ramp and that he found nothing wrong with it and could give no reason as to what caused the accident. As to the defendant Di Lorenzo, plaintiff contended that he should have been in back of the truck guiding him on the ramp but plaintiff admits that Di Lorenzo stood by the left front fender and that he was not relying upon him in the operation of his truck. The fact that the truck tipped over, under the circumstances herein, is no evidence of negligence, either common law or statutory, but rather demonstrates the happening of an accident. The mere happening of an accident in and of itself is not negligence and from the testimony of the plaintiff there is no showing as to what caused the accident and as a consequence there is not established any proximate cause between any acts or failure to act on the part of the defendants and the happening of the accident itself. Giving to the plaintiff the most liberal interpretation of the evidence and inferences deduced therefrom, there is a failure of proof of any negligence against either or both of the defendants. Judgments unanimously affirmed, without costs.