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Gargano v. Hanington

Appellate Division of the Supreme Court of New York, Second Department
Oct 2, 1972
40 A.D.2d 675 (N.Y. App. Div. 1972)

Opinion

October 2, 1972


In a negligence action to recover damages for personal injuries, plaintiffs appeal from a judgment of the Supreme Court, Suffolk County, entered December 19, 1969 in favor of defendants, upon the trial court's dismissal of the complaint at the close of plaintiffs' case upon a jury trial on the issue of liability. Judgment reversed, on the law, and new trial granted, with costs to abide the event. No questions of fact were presented on this appeal. The infant plaintiff, then 14 years of age, was allegedly injured on April 6, 1965, when his bicycle skidded on an accumulation of sand on a public street. In our opinion, the evidence adduced by plaintiffs was sufficient to present issues of fact for the jury as to the negligence of defendants, whether that negligence was the proximate cause of the child's injuries and as to the question of contributory negligence. The presence of sand, gravel or other debris upon a public highway has been held to constitute a basis for recovery in a negligence action against a governmental subdivision charged with the duty to keep its highways in a reasonably safe condition ( Haggerty v. State of New York, 300 N.Y. 537; Armstrong v. Bacher, 306 N.Y. 610; Viggiano v. State of New York, 47 Misc.2d 205). Upon the evidence presented, the jury could have found that the accumulation of sand had resulted from the winter sanding operations of defendants, that the sand should have been removed at an earlier date and that defendants had notice of its presence. The question of whether the infant plaintiff was contributorily negligent in riding near the side of the street rather than near the middle, where there was no sand, was for the jury to decide, particularly in view of subdivision (a) of section 1234 Veh. Traf. of the Vehicle and Traffic Law, which requires a person operating a bicycle to ride as near to the right side of the road as practicable ( Wartels v. County Asphalt, 29 N.Y.2d 372, 379).

Munder, Acting P.J., Latham, Gulotta, Christ and Benjamin, JJ., concur.


Summaries of

Gargano v. Hanington

Appellate Division of the Supreme Court of New York, Second Department
Oct 2, 1972
40 A.D.2d 675 (N.Y. App. Div. 1972)
Case details for

Gargano v. Hanington

Case Details

Full title:VINCENT R. GARGANO, an Infant, by His Father and Natural Guardian VINCENT…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 2, 1972

Citations

40 A.D.2d 675 (N.Y. App. Div. 1972)

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