Sherman v. Pullman 29 A.D.2d 1044

Order unanimously reversed on the law and facts and new trial granted, with costs to abide the event. Memorandum: In this ease the two occupants of defendant’s automobile were killed in the accident. Plaintiff’s proof that after the accident, her intestate was in the middle of the front seat with the right car door jammed shut while the left door was open and defendant’s son was lying on the pavement outside the ear presented a question for the jury on the issue of whether or not defendant’s son was the operator of the car. Proof that defendant’s southbound automobile was driven from the right hand shoulder of the highway, across the southbound lane, into the northbound lane where it collided with a truck made out a prima facie case of negligence sufficient to go to the jury to determine liability. (Pfaffenbach v. White Plains Express Corp. 17 N Y 2d 132; Czekala v. Meehan, 27 A D 2d 565, affd. 20 N Y 2d 686.) The trial court should have received the certificate of the death of plaintiff’s intestate and the testimony relating to the speed at which defendant’s automobile was operated. (Appeal from order of Onondaga Trial Term dismissing complaint in automobile negligence action.) Present — Williams, P. J., Bastow, Marsh, Witmer and Henry, JJ.