Fraher v. Marquart

—Order affirmed with costs. Memorandum: Under all of the circumstances, the question of defendant James R. Marquart’s negligence was an issue of fact properly submitted to the jury and the jury’s determination is not against the weight of the evidence. The jury reasonably could have determined that defendant was not negligent in making his left turn into the driveway. There was testimony that, before making his turn, defendant had stopped, rolled down his window to listen for vehicles approaching and heard nothing, and that plaintiff Thomas J. Fraher, Jr., drove through the fog at a speed of 50 miles per hour without his headlights on. The jury could have found that, before making his turn, defendant took reasonable precautions and that he could not reasonably have anticipated that someone would drive through the fog at such a rate of speed without headlights on. All concur except Callahan, J. P., and Fallon, J., who dissent and vote to reverse in the following Memorandum.