(DOWNLOAD) "Frank Piarulli v. Alan Lason" by Supreme Court of New York # eBook PDF Kindle ePub Free
eBook details
- Title: Frank Piarulli v. Alan Lason
- Author : Supreme Court of New York
- Release Date : January 27, 1970
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 57 KB
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[35 A.D.2d 605 Page 605] The findings of fact below have not been affirmed. In our opinion, the Trial Judge committed reversible error in charging
the jury that the infant plaintiff, a passenger in defendant Lason's automobile at the time of the accident, could not, as
a matter of law, be found guilty of contributory negligence. The testimony of the infant plaintiff, who was 15 years old at
the time of the accident, that the Lason automobile was traveling at 30 to 35 miles an hour just before it collided with the
Lamanna vehicle sharply contrasted with the testimony of the witness Kaplain, who stated that Lason's automobile was proceeding
at 50 to 60 miles an hour just before the occurrence. The infant plaintiff also testified that he was out on a double date
with Lason, aged 20, and at no time did he advise Lason to reduce his speed. In view of the conflicting testimony discussed
above, the jury should have been permitted to determine if the Lason automobile was proceeding at an excessive rate of speed
under the circumstances and, if so, whether the infant plaintiff was guilty of contributory negligence in not taking some
affirmative action or remonstrating with the driver concerning his conduct. The question of contributory negligence in failing
to warn the driver is ordinarily one for the jury and it is only where there is no dispute upon the facts and only one conclusion
can be drawn therefrom that it may be decided as a question of law (Nelson v. Nygren, 259 N. Y. 71; 4 N. Y. Jur., Automobiles,
§ 400). We are also of the opinion that error was committed when the Trial Justice charged the jury that a violation of the
Traffic Regulations of the City of New York constituted negligence as a matter of law. Such a violation, as distinguished
from a violation of a statute, such as the Vehicle and Traffic Law, is but some evidence of negligence, if the failure to
comply therewith is the proximate cause of the accident (O'Brien v. Falmore Cab Corp., 18 A.D.2d 1078, affd. 15 N.Y.2d 648).
Moreover, even a violation of the Vehicle and Traffic Law may not be deemed to constitute negligence [35 A.D.2d 605 Page
606]