Davis v. Farnham , 267 A.D. 938 ( 1944 )

Judgment and order affirmed, without costs of this appeal to either party. All concur, except I Cunningham, P. J., and Harris, J., who dissent and vote for reversal and for granting a new trial in the following memorandum: It was error for the j Trial Judge to instruct the jury that it could not consider the speed of the defendant’s intestate in determining his negligence, unless the intestate knew I that the wheel that came off was defective. The intestate’s car at the time of the accident was nine years old and the jury might have found that it was reckless for the intestate to drive a lightly constructed ear, nine years old, at a speed of fifty miles an hour. The question of the speed of defendant’s intestate’s ear and its causal connection with the accident were questions of fact for the jury. (Restatement, Torts [Negligence], §§ 434, 435, comment c, p. 1172; Martin v. Herzog, 228 N. Y. 164; Hart v. Buduk, 233 App. Div. 453; Day v. Johnson, 265 App. Div. 383; Slavik v. Gab Transportation Corp., 267 App. Div. 98; Sesselmann v. Metropolitan Street R. Co., 76 App. Div. 336; Di Carlo v. Feldman, 246 App. Div. 682.) (The judgment is for defendant for no cause of action in an automobile negligence action. The order denies plaintiff’s motion for a new trial.) Present — Cunningham, P. J., Dowling, Harris, MeCurn and Larkin, JJ.