Paone v. Magee

Appeal from an order which denied defendants’ motion for summary judgment in a negligence action. Defendants contend that the accident occurred solely by reason of the lack of skill and experience of defendant operator (a woman of 50, driving with a learner’s permit), of which plaintiff passenger, a licensed operator, assumed the risk. Making a right turn at a city street intersection, defendant operator, on meeting an automobile headed in the opposite direction and being confronted with a dog in the street ahead of her, failed to straighten the course of her ear after the turn, left the street and struck a building. Plaintiff passenger asserts that before entering the car she had no information as to defendant operator’s skill and experience and, in fact, had been, told that she *729had previously held an operator’s license. Whether or not defendant requested plaintiff to instruct her in.driving is in sharp dispute. The cause of the accident has not been established and remains a factual issue. While inexperience may have been the sole cause, it could, on the other hand, be found that a driver of some experience might react as did the defendant operator, if she was, in fact, startled by the sudden appearance of an animal in front of her car; and the trier of the facts might thereupon find negligence in the subsequent failure of control. (See Burns v. Wheeler, 17 A D 2d 173, 174.) If, however, inexperience be accounted the sole cause, the papers now before us still present a factual controversy—that as to whether plaintiff passenger was sufficiently aware of the operator’s lack of skill and experience to permit a voluntary and informed assumption of the risk. Order affirmed, with $10 costs. Bergan, P. J., Gibson, Herlihy and Taylor, JJ., concur.