Opinion
December 20, 1961
Present — Bergan, P.J., Gibson, Herlihy and Taylor, JJ.
Appeal by plaintiff from a judgment of the Supreme Court at Trial Term in Madison County entered upon a verdict of no cause of action in a personal injury negligence action. Plaintiff testified that as he was operating his automobile at about 4:30 o'clock on a January afternoon and at a speed of about 35 miles per hour, in a southerly direction upon the slippery surface of a four-lane highway divided by a mall, and following, as he had been for three miles, two other automobiles, at a distance of approximately six car lengths from the lead car, operated by defendant's testator (whose subsequent death was unrelated to the accident), and distant approximately three car lengths from the second car (which was not identified), decedent's car turned right on an intersecting highway and passed out of sight and the second car turned left and occupied part of the crossover and some part of the southbound passing lane while waiting for northbound traffic to pass; and that as plaintiff continued at his same speed, decedent backed his car from the intersecting highway into plaintiff's lane, with the result that the front of plaintiff's car collided with the rear of decedent's automobile. The only other evidence adduced as to the accident was the testimony of a State Trooper, who said that decedent told him that after he had made his right turn he was afraid of becoming stuck in the snow, or had become partially stuck in the snow, and backed up to try it again and was struck by plaintiff's car. The only evidence as to the operation of plaintiff's automobile was plaintiff's own testimony, which at best was grossly inaccurate as to either speed or distances or both, if, indeed, his version was not completely impossible. Under fundamental rules, as under the charge, to which no exception was taken, the jury was entitled to, and apparently did reject plaintiff's favorable testimony, whereupon there remained no evidence whatsoever upon which a finding of freedom from contributory negligence could be predicated and hence plaintiff's burden of proof was not sustained. Judgment affirmed, without costs.