Opinion
February 13, 1973
In a negligence action to recover damages for personal injuries sustained by the three infant plaintiffs and by their mother for medical expenses, plaintiffs appeal from a judgment of the Supreme Court, Suffolk County, entered October 29, 1971, in favor of defendants, upon the trial court's dismissal of the complaint at the end of plaintiffs' case, upon a jury trial of the issues of liability only. Judgment reversed, on the law, and new trial granted, with costs to abide the event. The appeal did not present questions of fact. The injuries of the infant plaintiffs were allegedly caused by defendants' automobile which swerved from its lane of travel into the opposite shoulder of the roadway and struck the children, who were walking along said shoulder. The accident occurred on August 27, 1963 at about 3:00 P.M. At the trial, plaintiffs' only witness was a police officer who testified that he arrived at the scene shortly after the accident had occurred and was told by the defendant driver that he had just pulled out of a gasoline station, that his accelerator had jammed and that he had swerved off the opposite side of the road and had struck the children. The infant plaintiffs did not take the stand; nor were they present in court at the time of trial. The ground upon which the trial court granted defendants' motion to dismiss the complaint was that plaintiffs had failed to make out a prima facie case of negligence. We disagree. In our opinion, the statement of the defendant driver to the police officer was sufficient to require the case to go to the jury on the issue of defendants' negligence ( Pfaffenbach v. White Plains Express Corp., 17 N.Y.2d 132). Hopkins, Acting P.J., Munder, Latham, Gulotta and Benjamin, JJ., concur.