Burkes v. Lieberman — 245 N.Y. 579

Majority

p. 579

Alex Burkes, Appellant, v. William Lieberman, Respondent.

(Argued May 6, 1927;

decided May 20, 1927.)

Headnote

Negligence — motor vehicles — ■pedestrian injured by stone struck and thrown by passing automobile — insufficiency of proof of negligence on part of driver.

Burkes v. Lieberman, 218 App. Div. 600 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 17, 1926, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. The complaint alleged that while plaintiff was walking along a country road a passing automobile struck a pile of stones throwing one of them into the air in such manner that it struck plaintiff, causing the injuries complained of. The Appellate Division held that the testimony did not show negligence on the part of the driver.

William B. Shelton and David Batt for appellant.

George F. Hickey, Henry L. Ughetta and William Butler for respondent.

Order affirmed and judgment absolute ordered against appellant on. the stipulation, with costs in all courts;

no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.