Opinion
April 10, 1950.
Action by an infant plaintiff to recover for personal injuries sustained as a result of the alleged negligence of defendant in the operation of a motor vehicle, and by the father of the infant plaintiff for expenses. Judgment for defendant reversed on the facts and a new trial granted, with costs to abide the event. Concededly the defendant, in whose car the infant plaintiff was a passenger, failed to notice that the highway on which he was driving turned to his left. He continued straight ahead and ran into a pillar of an elevated railway, which also he did not observe. He was bound to see what he should have seen ( Weigand v. United Traction Co., 221 N.Y. 39, 42) and the facts establish his negligence in the absence of other evidence. ( Locicero v. Messina, 239 App. Div. 635, 636.) The other evidence in this record, in the form of an explanation by defendant to the effect that he was watching automobiles on either side of him, does not serve to exculpate his failure to ascertain such manifest conditions ahead of him as a bend in the road and a pillar of an elevated railroad. Nolan, P.J., Carswell, Johnston and Sneed, JJ., concur; Adel, J., concurs in result.