Martin v. Stone (35 A.D.2d 620, 1970)

Memorandum by the court.

Herlihy, P. J., Cooke, and Sweeney, JJ., concur in memorandum by the court. Greenblott, J., dissents and votes to affirm, in a memorandum in which Reynolds, J., concurs.

Greenblott, J. (dissenting).

It appears to me to be a question of fact for the jury as to whether plaintiff Martin was guilty of contributory negligence. From the evidence the jury could have found that plaintiff Martin continued driving up the hill after he observed the defendant in obvious difficulty, and that Martin had sufficient time to bring his vehicle to a complete stop and thus avoid the accident. Furthermore, Martin’s testimony that he continued for 50 to 100 feet further south after the accident might have satisfied the jury that his speed was greater than he testified and in excess of what was prudent under the prevailing conditions. (Rapant v. Ogsbury, 279 App. Div. 298.) As Justice Bergan, then a member of the Appellate Division, Third Department, stated in Bapant (supra) : “ In deciding who is right and who is wrong, or if nobody is right or wrong, when vehicles come together on a plowed-out and slippery road the judgment of jurors is quite apt to be better than that of judges.” Also, questions of credibility were presented based on discrepancies in the testimony of Martin and Mrs. Burrows. Accordingly, I dissent. The judgment should be affirmed.