Clarkson v. Smith — 247 N.Y. 564

Majority

p. 564

George H. Clarkson, Appellant, v. Burns L. Smith, Respondent.

Headnote

Negligence — motor vehicles — passenger injured through chauffeur’s steering backing automobile against bank in order to stop, causing ■ car to overturn.

Clarkson v. Smith, 220 App. Div. 808 , reversed.

(Argued January 16, 1928;

decided February 14, 1928.)

Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered September 26, 1927, 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 occasioned through the negligence of defendant. Plaintiff was injured while riding as a passenger in defendant’s automobile. While going up grade the engine stalled and the car started to back down and the chauffeur threw the rear end of the car into the bank at the side of the road in order to stop, causing the car to turn over.

George R. Fearon for appellant,

H. D, Bailey for respondent,

p. 565

Order of the Appellate Division reversed and judgment of the Trial Term affirmed, with costs in this court and in the Appellate Division, upon the ground that the question of defendant’s negligence was one of fact for the jury.

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