Giminski v. Irving

Full title: JOHN GIMINSKI, Appellant, v . FRANCIS IRVING, Respondent

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Oct 1, 1924

210 App. Div. 343 (N.Y. App. Div. 1924)

206 N.Y.S. 119

Opinion

October 1, 1924.

Daniel T. Scully [ W.B. Matterson of counsel], for the appellant.

Bond, Schoeneck King [ Clarence R. King of counsel], for the respondent.

Present — HUBBS, P.J., CLARK, DAVIS, CROUCH and TAYLOR, JJ.

PER CURIAM:

The accident happened on May 5, 1922, at about eleven P.M. The refusal of the trial court to charge that "failure to have a light on the defendant's car establishes a prima facie case of negligence" was error. ( Martin v. Herzog, 228 N.Y. 164.)

In the main charge the court said: "The mere fact that there wasn't any light on that motor vehicle does not necessarily make the defendant guilty of negligence, but it is an element to be taken into consideration as to whether or not he was guilty of negligence; it is only negligent provided that it was the proximate cause of the accident. If the fact that the motor vehicle did not have a light on it was the cause of the accident, then you can say that the failure to have a light on the automobile was negligence."

The learned court of course had in mind actionable negligence as distinguished from abstract negligence. As far as it went, the charge was correct. But there was here, just as there was in the Herzog case, undisputed evidence of a collision with an unseen and unlighted vehicle, occurring more than an hour after sundown. That "is evidence from which a causal connection may be inferred between the collision and the lack of signals." ( Martin v. Herzog supra, 170.)

Thus there was a prima facie case of negligence made out, sufficient in itself to sustain a verdict unless its probative force was overcome by evidence offered on behalf of defendant. The requested charge was directed to that point, which, in our opinion, was not covered in the main charge. The weight which the jury was bound to give to the violation of the statute was not made clear. The judgment and order should be reversed on the law and a new trial granted, with costs to the appellant to abide the event.

All concur.

PER CURIAM:

Judgment and order reversed on the law and new trial granted, with costs to appellant to abide event.