Deutsch v. Hults

Proceeding pursuant to article 78 of the Civil Practice Act to review a determination of the respondent suspending, for 30 days, petitioner’s license to operate a motor vehicle for a violation of paragraph (e) of subdivision 3 of section 71 of the Vehicle and Traffic Law. The proceeding has been transferred to this court for disposition (Civ. Prae. Act, § 1296). Determination unanimously confirmed, with costs. The evidence adduced before the Referee established that a motor vehicle, operated by petitioner at a speed of about 20 miles an hour, struck a pedestrian at about 5:30 p.m. on March 26, 1959 at the intersection of 20th Avenue and 73rd Street in Brooklyn. Although the pedestrian was struck by the right-front fender of the motor vehicle, petitioner testified that he did not see her and had no knowledge of the accident until he heard a thud on the fender. No evidence was adduced which tended to explain the fact that petitioner did not see the pedestrian in time to avoid the accident, although the weather was clear, the accident occurred during daylight, and the visibility was good. Under the circumstances, the question of whether petitioner was guilty of gross negligence was one of fact (Matter of Kelley v. Kelly, 5 A D 2d 913), and we are unable to say that the determination 725 was not supported by substantial evidence (cf. Matter of Cohn v. Fletcher, 272 App. Div. 1080, affd. 297 N. Y. 851; Matter of Donahue v. Fletcher, 299 N. Y. 227, 229). Present —Nolan, P. J., Beldoek, Ughetta, Kleinfeld and Brennan, JJ.