Harvey v. Platten ( 1969 )

Memorandum by the Court.

Appeal by the defendant from an order of the County Court of Albany County, entered December 26, 1967, which affirmed a judgment of the City Court of Albany, entered on June 2, 1966, in favor of plaintiff. The instant action was commenced by the plaintiff to recover property damages to his automobile. The record establishes that on May 18, 1965 the appellant’s automobile was parked so that about one foot or more of it extended across an opening in the curbing on a city street for a private driveway; that the plaintiff parked his car using that driveway and in so doing he observed the appellant’s car; that the opening in the curbing was some 10 to 12 feet Wide with the appellant’s ear so parked; that the plaintiff in leaving his parking place had to back out upon the street and in so backing he struck a fire hydrant on the opposite curb with the rear of his ear. The plaintiff was aware of the location of the hydrant prior to hitting it, but apparently would have been able to stay further away from the opposite curb if the appellant’s car had not taken up part of the driveway. The appellant urges that the plaintiff was guilty of contributory negligence as a matter of law. As noted by the County Court, the appellant’s car was parked in this position for an extended period of time and, under such circumstances, there was no necessity for the plaintiff to wait until the appellant’s car was moved before removing his own ear through the driveway (see Salisbury v. United Parcel Serv., 203 Mise. 1008), but that fact alone does not establish plaintiff’s freedom from negligence (Massey v. Matea, 11 A D 2d 36, affd. 13 N Y 2d 631). We are unable to agree with the City Court’s finding that, under the circumstances, the defendant’s parking his automobile in violation of a local traffic ordinance constituted not only prima facie evidence of negligence but also a “ public nuisance ”. In any event, there must be a showing that the appellant’s ear was at least a contributory cause of the accident. The present record does not disclose any reasonable causal connection between the narrowing of the plaintiff’s way of egress and the hitting of a fire hydrant on the opposite side and not in the traveled portion of the street. Upon the present record, a minimal amount of cautious maneuvering should have been sufficient for the plaintiff to enter the street by backing and, under such circumstances, the parking of the appellant’s automobile is, as a matter of law, not a proximate cause of the plaintiff’s backing into the fire hydrant. The appellant’s motion in the trial to dismiss the complaint should have been granted. Order reversed, on the law and the facts, and complaint dismissed, with costs in all courts. Herlihy, P. J., Staley, Jr., Greenblott and Cooke, JJ., concur in memorandum by the court; Reynolds, J., dissents and votes to affirm in a memorandum.