Joyce v. Estate of Boyer 46 A.D.2d 727

— Judgment and order unanimously reversed, on the facts, and new trial granted solely on the issue of liability, with costs to appellants to abide the event. Memorandum: Defendants appeal from judgments awarded against them in a wrongful death and a property damage action. The verdicts rest on findings implicit in them that defendant’s driver was negligent in pulling out from the shoulder on to the right-hand lane of a highway, which had three lanes for traffic traveling south, in front of plaintiffs’ south-bound tractor-trailer, and that plaintiff Morey’s decedent was not negligent in colliding with the rear of defendants’ tractor-trailer. While the record contains one statement by the eyewitness Reiehard that defendant’s vehicle “was just pulling on from the shoulder” at the time of the collision, which might have led the jury to those findings, the great bulk of the evidence — including several statements by this witness — placed defendant’s truck at from one-half mile to one mile ahead of plaintiffs’ truck when the former moved on to the highway. An entry in daylight hours, at that distance ahead of traffic on the road, by a vehicle which continues to move forward does not give rise to an inference of negligence, but suggests that the accident was precipitated by the action of the driver behind in failing to see the vehicle ahead of him ,(as the eyewitness saw it) or in failing to stop or to pull out into either of the two lanes available to him to avoid the accident. Because the verdicts imposing liability on defendants are against the weight of the evidence, a new trial is required. However, since defendants do not challenge the amount of the .verdicts and no cross appeals have been taken by plaintiffs, only the issue of liability will need to be retried (La Rocco v. Penn Cent. Transp. Co., 29 N Y 2d 528, 666). (Appeal from judgment and order of Livingston Trial Term in action for damages for wrongful death.) Present — Marsh, P. J., Moule, Simons, Mahoney and Del Vecchio, JJ.