Leeber v. Welsbach Corp. ( 1956 )

In an action to recover damages for the wrongful death of respondent’s intestate, the appeal is from a judgment entered on a verdict in favor of respondent. Judgment reversed and new trial granted, with costs to abide the event. On January 11, 1954, employees of appellant were engaged in repairing a broken light pole located on the center mall of the Belt Parkway in Queens County. On each side of the mall there are three lanes, each about eleven feet wide. At 6:30 P.M., the time of the accident, according to appellant’s employees, one of appellant’s trucks was parked, with headlights on, immediately adjacent to the mall in the westbound lane facing west. Its rear was illuminated with blinkers and spotlights on a warning sign. Another of appellant’s trucks was parked, with headlights on, parallel to the mall in the eastbound lane, facing east. Policemen, who had passed the scene a half hour before the accident, corroborated the testimony of appellant’s employees as to the lighting and location of the truck facing west. So, too, did park department employees who had passed by immediately prior to the accident, sanding the westbound lanes. It had been snowing and there was a drizzle. The park department employees testified that they saw the ear operated by decedent approach fast from the east and at a terrific rate of speed, hit the right rear of the parked truck facing west and spin around, and come to a stop on the most northerly of the westbound lanes. The car was a shambles, with its hardtop completely ripped off and its left front demolished. The truck, according to the employees of the city and appellant, was spun around and thrown up on the mall from 30 to 100 feet away and facing northeast. Analysis of decedent’s brain disclosed with reasonable certainty that he was intoxicated. In the light of the foregoing testimony and other proof, including photographic exhibits corroborating appellant’s version, the verdict was against the weight of the credible evidence. Beldoek, Acting P. J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur.