Opinion
November 9, 1926.
Appeal from Supreme Court of Onondaga County.
Byrne Byrne [ Richard P. Byrne of counsel], for the appellant.
Bailey, Oot Ryan [ H.D. Bailey of counsel], for the respondent.
Credible testimony was produced upon the trial herein to the following effect:
In the city of Syracuse, Croly street, Scottholm boulevard, Salt Springs road and East Genesee street form a junction. At about the center thereof a stationary electric flashlight several feet high stands embedded in the pavement. On the night of June 14, 1925, about two-thirty A.M., the respondent's automobile was parked on the northerly side of East Genesee street seventy to eighty feet westerly from said electric flashlight. The automobile was parked diagonally, facing northwesterly, with its right front wheel substantially next to the curb, and its right rear wheel about three feet from the curb. This automobile was of a dull color. Automobiles equipped with glaring headlights were proceeding easterly on East Genesee street at the time in question. A Buick coupe, driven by appellant's husband, Harry E. Morton, came from the easterly direction, turned to the right or northerly side of the electric flasher, and, proceeding westerly, collided with the rear end of respondent's automobile. Morton's headlights were lighted and there was no light upon the rear of respondent's car. Appellant, who was a passenger in Morton's automobile, received personal injuries. At the trial of the action, brought to recover damages for such personal injuries, a verdict was directed for respondent. The direction was upon the sole ground that no proof had been made from which the jury could find even concurring actionable negligence in the respondent.
Appellant is entitled to all reasonable intendments deducible from the testimony. Subdivision 5 of section 15 of the General Highway Traffic Law reads as follows: "Any vehicle when stopped parallel to the curb shall stop as near to the curb as practicable, with wheels, both front and rear, not more than six inches from the curb."
The testimony as to the manner in which respondent's car was parked furnished prima facie evidence of actionable negligence. ( Martin v. Herzog, 228 N.Y. 164.) Therefore, it became the province of the jury to determine whether the facts were as appellant claimed, and if so, then to determine whether or not negligence of respondent was the sole, or a concurring, proximate cause of the collision.
The judgment and the order denying a motion for a new trial upon the minutes of the court should be reversed upon the law and facts and a new trial granted, with costs to the appellant to abide the event.
All concur. Present — HUBBS, P.J., CLARK, SEARS, CROUCH and TAYLOR, JJ.
Judgment and order reversed on the law and new trial granted, with costs to appellant to abide event.