Opinion
July 7, 1955.
Appeal from Supreme Court, Cortland County.
The plaintiffs, husband and wife, were passengers in an automobile which was being driven by the defendant on April 4, 1954, at 1:30 o'clock in the morning in the vicinity of Cortland, New York. It left the highway and struck a tree. The plaintiffs were injured, the wife severely, and the auto was damaged beyond repair. The plaintiff husband was the only witness called by the plaintiffs who testified concerning the happening of the accident. He described the weather as "snowing a little bit" and the pavement as being "icy in places". He testified that, prior to arriving at the place where the accident occurred, the automobile had been driven down a hill and that the defendant "didn't seem to slow up any". He described the happening of the accident by saying the defendant "was driving all right" and "I told him he had better take it a little easy because it was icy in spots and the next thing he hit the tree". The bare showing that an automobile leaves a highway and crashes into a tree or other obstacle is no evidence of negligence on the part of the operator. ( Galbraith v. Busch, 267 N.Y. 230.) The skid of an automobile on a slippery road where it was being operated at a moderate rate of speed does not constitute negligence. ( Lahr v. Tirrill, 274 N.Y. 112.) Neither is the unexplained swerving of a vehicle proof of the operator's fault ( Marinan v. Kronberger, 280 N.Y. 640) ; nor the seriousness of the injury proof of lack of care in the operation of a motor vehicle. ( Cole v. Swagler, 308 N.Y. 325. ) Reading the evidence in the record in an aspect most favorable to the plaintiffs, it is our opinion that all that has been shown is that for some unexplained reason the automobile in which the plaintiffs were riding left the highway. Speed in excess of that reasonable under the circumstances cannot be inferred from statements that the automobile "didn't seem to slow up any" and that the defendant was told to "take it a little easy". The automobile could have been proceeding at a moderate rate of speed and still not "seem to slow up any", and the suggestion to "take it a little easy" could well indicate that the speaker had concluded that driving conditions were bad, but it is no indication that the driver was doing anything which the ordinary prudent driver would not have done under the same circumstances. Consequently, we agree with the Trial Judge that the plaintiffs did not prove a prima facie case. During the argument of the motion for a nonsuit, the attorney for the plaintiffs stated in substance that he had inadvertently failed to elicit from the plaintiff husband testimony that the automobile was going forty-five miles per hour just prior to the accident. If this evidence were in the record, a question of fact would have been raised as to the weight to be given such testimony and, whether such speed was unreasonable under the conditions of the weather and highway. Before the court recalled the jury to the courtroom and announced that the motion for a nonsuit had been granted, plaintiffs' counsel applied to reopen his clients' case to present the omitted testimony concerning speed. His application was not granted although power to do so existed. (Rules Civ. Prac., rule 166, subd. 2.) We think in the interests of justice under the circumstances disclosed the application should have been granted. ( Asserson v. City of New York, 195 App. Div. 12.) Judgment reversed, upon the law and the facts, without costs, and a new trial ordered. Foster, P.J., Bergan, Coon, Halpern and Zeller, JJ., concur. [See post, p. 977.]