Pogozelski v. Dunk

¶1Beldock, P. J., Ughetta, Rahin and Nolan, JJ., concur; Benjamin, J., dissents and votes to reverse the judgments and to dismiss the complaint, with the following memorandum: This accident occurred on the New York Thruway, at night, in a blinding snowstorm, with visibility of only about 75 feet. Under those conditions, plaintiff drove his truck at a speed ranging between 20 and 30 miles per hour, and, so driving, ran into the rear of defendant’s truck. When the accident occurred, plaintiff was looking “ more towards the ground ”, since he could not see through the driving snow if he looked straight ahead; hence, he did not see the reflector lights on the rear of defendant’s truck until it was too late. Plaintiff said that defendant’s truck was stopped at the time of the accident; defendant said it was moving slowly and that the rear and top were lit up with seven lights. On this record, I think plaintiff was guilty of contributory negligence as a matter of law, and his complaint should be dismissed (Massey v. Matza, 11 A D 2d 36, affd. 13 N Y 2d 631).