Opinion
March 5, 1958
Appeal by defendant from a judgment of the Supreme Court, Franklin County, entered upon a verdict in favor of plaintiff in a negligence action. Plaintiff has recovered for personal injuries sustained when his own automobile, in which he was a passenger and which was then operated by the defendant, his son, collided with another car. Appellant does not contest the jury's finding of negligence on the part of the defendant and submits only the issue of plaintiff's contributory negligence. The accident occurred on a two-lane highway on a foggy morning. The jury could find that there were stretches of road where the visibility was clear or reasonably so and that it was in one of those areas that defendant passed and overtook one car and was overtaking and passing another when the collision with an oncoming automobile occurred. Plaintiff testified that the speed of his car was 30 to 35 miles per hour; that defendant did not pass any car when it was foggy; that at a point some miles distant from the scene of the accident he told his son to slow down because of the fog and did not again caution him as to his driving. Plaintiff's testimony was at some variance with allegations of his bill of particulars as to speed and as to defendant's acts in overtaking cars when visibility was limited, but at what point or points, with reference to the scene of the accident, is not entirely clear. It could properly be found, however, that defendant's operation of the car prior to the accident was not such as reasonably to require action by plaintiff beyond the instruction to slow down which he gave, and that when the situation of danger developed, it was as reasonable for him to do nothing, assuming he had opportunity to act, as to interfere with the driver's operation at so crucial a moment. Thus we cannot say that the preponderance of the evidence does not support the finding, implicit in the jury's verdict, that the plaintiff passenger acted as a reasonably prudent person would have done under the circumstances. Upon this record, the question was for the jury. (See Nelson v. Nygren, 259 N.Y. 71, 76.) Judgment affirmed, with costs to respondent. Foster, P.J., Bergan, Coon and Gibson, JJ., concur.