Mullin v. Riddell , 1 N.Y.S.2d 435 ( 1937 )

Appeal by the defendant, in each of the above-entitled actions, from a judgment of the Supreme Court, entered in the Montgomery county clerk’s office on June 26, 1936, and also from an order entered in said clerk’s office on December 1, 1936.

Defendant appeals from a judgment in favor of the plaintiff Mary Mullin recovered for personal injuries and damages, and from a judgment recovered by James Mullin for medical expenses and loss of services of his wife. She was struck by a car driven by defendant in the city of Amsterdam at the intersection of Guy Park avenue and Market street on March 13, 1935, about eight o’clock in the morning. Market street, on which defendant was driving, has more than a twelve per cent grade. The street was covered with ice, which was observed by the defendant prior to starting down. His car, at the beginning of the descent, was in low gear. He shifted into second and attained a speed of from eighteen to thirty miles an hour. His automobile skidded upon the ice and went upon the westerly sidewalk and struck a building. The sidewalk was partially clear of ice and defendant had Ms car wholly or partly under control so long as he stayed on the sidewalk. After Mtting the bMlding, he turned Ms ear back toward the street and traveled diagonally down the sidewalk. The plaintiff Mary Muffin on the sidewalk saw the car coming directly toward her and went into the street. Defendant followed, striMng and injuring her.

The jury was justified in finding defendant negligent for shifting from low to second gear and for driving at a rate of speed that was excessive on so icy a pavement, and further it was justified in finding him negligent for turning Ms ear back into the street when it had come to rest against the building.

Judgments affirmed, with costs in one action.

Hill, P. J., Rhodes, Crapser and Bliss, JJ., concur; McNamee, J., dissents, with an opinion, and votes to reverse the judgments and to dismiss the complaints.