Opinion
February 20, 1962
Present — Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ.
Appeal by defendant from judgments of the City Court of the City of Troy, one in favor of the plaintiff Joan Schultz for the sum of $1,647.64 and one in favor of the plaintiff Joseph H. Manny, Jr., for the sum of $342.55. These judgments are for property damages to motor vehicles owned by the respective plaintiffs which were damaged when the brakes on defendant's truck allegedly failed in descending a hill and the truck was deliberately driven into the vehicle owned by one of the plaintiffs which in turn collided with the vehicle owned by the other plaintiff. Defendant's truck, loaded with at least 13 tons of sand, started down a steep hill in third gear. From the record we think it was a question of fact whether defendant's driver was going too fast under the circumstances as he started down the hill, whether he should have been in a lower gear considering his load, and whether he should have sooner "ditched" the truck. In view of the complete lack of evidence as to previous inspection of the brakes or the cause of their failure, it was within the province of the Judge as trier of the facts to decide the applicability of subdivision 1 of section 15 (now § 375, subd. 1) of the Vehicle and Traffic Law, which requires brakes to be in working order and sufficient to control such vehicle at all times when the same is in use. The fact that defendant's driver testified that the brakes failed when they had previously worked all right does not ipso facto absolve the owner from negligence. Questions of fact were presented, and the record is adequate to support the judgments. ( Alongi v. Beuter, 286 App. Div. 990.) Judgments unanimously affirmed, with one bill of costs.