Opinion
July 7, 1955.
Appeal from Supreme Court, Ulster County.
Plaintiff is the owner of an automobile which she is unable to drive. She requested the defendant to drive it for her, while she rode in it as a passenger. An accident occurred and plaintiff was injured. There is prima facie proof of negligence in its operation. Plaintiff encountered some language difficulties in describing what happened, but what she said described negligence. The car failed to get around a sharp curve in the road and ran into the embankment. The plaintiff testified: "He speeded car, speeded car and was too much sharp turn and he went up the bank * * * The turn was very sharp and we went up the bank * * * He went fast." Speed on a sharp turn with a resulting accident when a vehicle fails to get around the turn is, on its face, sufficient evidence of negligence. Defendant gave no explanation whatever of the accident. While, as a matter of law, he is not required to make any explanation and is entitled to rest on plaintiff's case, still the showing of negligence on the record is clear enough that in the absence of any explanation by the driver who was in full personal control of the operation of the vehicle we regard the verdict as against the weight of evidence. There is no rule that requires defendant to account for the accident; but there is also no rule which prevents his giving an account of it. The exercise of such an election not to explain may sometimes leave the record considered on the whole as sufficiently unbalanced in weight as to require a fresh examination of the facts. There is no proof of contributory negligence. Plaintiff did not have to remind the driver to watch out for every curve. She was entitled to think the driver in full charge of the vehicle would negotiate such curves as might be met on State highways without mishap. There is a suggestion that the defendant was drinking and that it would be contributory negligence for plaintiff to ride with him. The uncontradicted testimony is that plaintiff did not see defendant drinking or observe that he was drunk. The charge to the jury was entirely fair to the plaintiff and correct; but we think there should be a new trial on the weight of the evidence. Judgment reversed, on the law and facts, and new trial ordered, with costs to the appellant to abide the event. Foster, P.J., Bergan, Halpern, Imrie and Zeller, JJ., concur.