Opinion
December 17, 1970
Order, Supreme Court, Bronx County, entered on August 17, 1970, granting plaintiffs' motion for summary judgment and directing an assessment of damages, in this personal injury action, unanimously reversed, on the law, without costs and without disbursements, and motion denied. The defendant claims that he placed his transmission gear into reverse, but the car went forward instead of backing up and that the police found the gear lever in reverse position immediately after the accident. As against this contention plaintiffs assert that, while this explanation was reported by the defendant to the Department of Motor Vehicles, the defendant also stated in that report that he "applied brake pedal and in so doing struck against both the brake and gas pedal". Plaintiffs argue that this clearly shows that the defendant was negligent. We are agreed that a strong case is made out by plaintiffs in support of their motion for summary judgment. However, "even when there is no dispute as to the physical facts of the accident and when there is no claim of contributory neligence * * * the unresolved issue still remains as to whether the defendant used such reasonable precautions to avoid the accident as would ordinarily be used by careful, prudent persons under like circumstanes * * * and that question is essentially one of facts * * *. Evidence of the physical facts may establish negligence prima facie, but in such a case the court may seldom direct a verdict though the plaintiff's evidence is not contradicted or rebutted by the defendant. Whether negligence is established prima facie by direct or circumstantial evidence, the question as to whether the defendant was at fault in what he did or failed to do is ordinarily one of fact, to be determined by the jury". ( Gerard v. Inglese, 11 A.D.2d 381, 382-383.) It is to be noted that, in the last-cited case, the court did sustain the granting of summary judgment on the peculiar factual situation there presented. (Also see Ward v. Perry, 33 A.D.2d 1002.) If plaintiffs are so advised, and meet the statutory requirements, they should, on application, be granted a preference in the interests of justice. ( Lasko v. Hirsch, 34 A.D.2d 629).
Concur — Eager, J.P., Capozzoli, McGivern, Steuer and Tilzer, JJ.