Aiello v. Garahan

— Order reversed, without costs, plaintiffs’ motion [840] denied and verdict reinstated. Memorandum: Trial Term erred in setting aside the jury’s verdict of no cause of action against plaintiffs and ordering a new trial. The evidence established that, at the time of the accident, defendant was going approximately 30 to 35 miles per hour, that the day was bright and clear, that defendant saw the flashing light on plaintiffs’ police car ahead of him and saw a vehicle in his rear view mirror. Apparently without warning, defendant momentarily dozed at the wheel, crashing into the rear of plaintiffs’ vehicle. The issue of defendant’s negligence was a question of fact for the jury which resolved that issue in favor of defendant. The general rule is that falling asleep, without more, does not constitute negligence and a defendant driver may be excepted from liability for sudden and unforeseen loss of consciousness which results in an accident (see Ann., 93 ALR3d 326). “Falling asleep while driving is not negligence as a matter of law under all circumstances. In determining whether the driver who fell asleep at the wheel was negligent, the most important consideration is whether he had any warning of the likelihood of his falling asleep” (Vignola v Britts, 11 AD2d 801). Setting aside the verdicts cannot be justified because it cannot be said that the jury could not have reached the conclusion it did upon any fair interpretation of the evidence (see Smith v McIntyre, 20 AD2d 711). Concur — Dillon, P. J., Denman, Boomer and Schnepp, JJ.