Opinion
November 22, 1961
Appeal by defendants from a judgment of the Supreme Court, based upon a jury verdict of $9,000 in favor of the plaintiff Geraldine M. St. Denis (hereinafter called plaintiff), and a verdict of $800 in the derivative action of Gerald St. Denis. Plaintiff [infant] and the defendant Skidmore were the only occupants of a car when it suddenly left the road and turned over. The defendant Skidmore was driving, and the plaintiff, a licensed operator, was a passenger. Plaintiff knew that the defendant Skidmore possessed only a learner's permit and had failed in one driver's test. The accident happened in broad daylight, with no other moving traffic in the vicinity. The undisputed evidence is that the defendant Skidmore simply lost control of the car as she yanked the wheel too sharply. The evidence points conclusively to the fact that the accident occurred solely as a result of the driver's lack of skill and experience. There is not a whit of evidence to the contrary. Under such circumstances the plaintiff assumed the risk and may not recover ( Le Fleur v. Vergilia, 280 App. Div. 1035; Spellman v. Spellman, 309 N.Y. 663; see Aloisio v. Nelson, 27 Misc.2d 343). The trial court correctly charged the jury as to the rule of assumed risk, and the verdict is against the weight of evidence in any event. However, it is clear that the plaintiff did not establish a prima facie case upon the undisputed facts, and the motion to dismiss should have been granted, without the submission of the case to the jury. Judgment reversed on the law and the facts and the complaints dismissed, without costs. Coon, J.P., Gibson, Herlihy, Reynolds and Taylor, JJ., concur.