Garlock v. Vrooman

The plaintiff in this action sued the infant drivers of two separate vehicles for alleged negligence causing the death of plaintiff’s intestate. The jury found a verdict against both defendants. Later the trial court made an order setting aside the verdict of the jury against the defendant-respondent Ellis Yan Schaiek, Jr., and dismissed the complaint against him. From that order of dismissal and the judgment entered upon the same the plaintiff has appealed. Plaintiff’s intestate was a passenger in an automobile driven by the defendant Yrooman. The drivers of both ears and their occupants were friends, and on the night of the accident they set out in the two ears from Sharon Springs in Schoharie County to the hamlet of Ames for the purpose of meeting some girls. The Vrooman ear started first and then was passed by the Yan Schaiek car. Both vehicles apparently were proceeding at a high rate of speed. Prior to the accident the Vrooman car passed the Yan Schaiek car and was in the lead when it left the highway and turned over. The defendant Yrooman testified that he was on his right hand side of the road going into a curve just before the accident occurred and lost control of his ear, that went into a skid when he tried to avoid hitting a dog which ran out into the road. There was no contact between the Yrooman car and the Yan Schaiek car, and apparently plaintiff’s theory of liability on the part of Yan Schaiek is that he was driving so fast in the rear of the Vrooman ear that the latter did not slow down for the curve because of fear that he would be struck in the rear. This is a rather extraordinary theory at best but the only direct proof in the record as to the distance between the two ears is that they were between 200 and 300 feet apart just before the accident happened. The claim of the plaintiff therefore had to rest on a speculative inference unsupported by the record. Under the circumstances the trial court was justified in finding that no competent evidence of negligence was shown against the respondent Van Sehaiek that was a proximate cause of the accident. Order and judgment affirmed, without costs.

Foster, P. J., Bergan, Halpern and Gibson, JJ., concur.