Opinion
December 7, 1961
Appeal from the Oneida Trial Term.
Present — Williams, P.J., Bastow, Goldman, Halpern and McClusky, JJ.
Judgment and order unanimously reversed on the law and a new trial granted, with costs to the appellant to abide the event. Memorandum: The Trial Justice dismissed the complaints after hearing plaintiffs' and defendant's testimony. Defendant, called by plaintiffs, testified that on a rainy night while he was manipulating the dashboard cigarette lighter to light a cigarette, he made a right-hand turn with one hand at a corner that "came up * * * before I knew" and lost control of his car and hit a pole. He was traveling about 20 to 25 miles per hour in the City of Utica, at the time and did not apply his brakes. He admitted having had four or five highballs during the course of the evening. He said he was "puzzled". The plaintiffs were passengers. Subdivision 10 of section 81 Veh. Traf. of the Vehicle and Traffic Law (in effect at that time) provided that a motor vehicle turning at an intersection should be driven with extreme caution and under control. Upon the evidence a prima facie case was made out by plaintiffs and the Trial Justice was incorrect when he dismissed the case upon the authority of Galbraith v. Bush ( 267 N.Y. 230). In the Galbraith case, unlike the present case, there was no proof of negligence in the operation of the automobile. The judgment must be reversed and a new trial granted.