Although defendant gave no proof of the manner of occurrence of the accident, it did not happen in a factual vacuum; and there are enough facts in the record fairly to sustain a finding of negligence without resting the case entirely on pure inference that its naked occurrence alone imputed negligence.
It is fair to infer that the undue speed of defendant’s truck in view of the surface and traffic conditions on Manhattan Bridge at the time of the accident was an element in the occurrence. The plaintiffs’ vehicle was traveling in the lane on its farthest right in the direction of Brooklyn. Another eastbound lane separated the lane in which plaintiff Lo Piccolo was driving from the single westbound lane in which defendant’s truck was moving.
To run into plaintiffs’ vehicle it was necessary for defendant’s truck not only to leave its own lane, but to cross the middle lane set up for traffic the other way, and to continue on to the next eastbound lane. That its speed was rapid is suggested both by the rapidity with which it made this cross transition and by the physical consequences of the collision it caused when it reached the ultimate wrong lane.
Plaintiff Lo Piccolo described this movement of defendant’s truck across the bridgeway as coming ‘ ‘ from my extreme left lane.” He continued his description: “with a flash it’s right in front of my truck ”. His further description was, using the present tense, that it “ shoots out”.
*377The possibility might exist, of course, that due to the wet surface condition of the bridge defendant’s truck skidded or slid more than its driver might expect; but to get across the bridge with the speed indicated by this undisputed narrative is substantial evidence that the defendant’s truck was going much too fast before it went out of its own lane.
The physical results of the impact indicate high speed. The collision was so great that Lo Piccolo was hurled entirely out of the cab of his truck onto the bridge pavement. The witness Babick, driving right behind plaintiffs’ vehicle described the impact as great enough to turn plaintiffs’ truck, i.e.» “ swung him around”, and the momentum of defendant’s motion was such that he ‘ ‘ went right across the other side of the lane ’ ’.
Not only do the photographs of plaintiffs’ truck indicate it was hit by a vehicle moving- at considerable velocity, but the descriptions by witnesses who observed the truck are to the same effect. One witness, describing it, noted that “ the complete body of the truck had been smashed ” and an expert on damage testified that the photographs indicated to him that ‘ ‘ it looks like salvage ’ ’.
This sort of result can scarcely be charged alone to a slippery bridge and reasonably ought to be charged to undue speed on a slippery bridge. In Galbraith v. Busch, (267 N. Y. 230) and other similar authorities with one exception, on which defendant relies, the element of speed was clearly out of the case; but the record before us does not permit us so confidently or so conclusively to rule it out.
Besides this, we are required to take notice under the proof in this case and the undisputed areas of the record as it comes to us, that by public regulation traffic moving in the direction of Brooklyn was assigned to two lanes in the bridgeway and traffic bound for New York to one; and that it would be unlawful and a violation of this public traffic regulation for the defendant’s truck to be operated toward New York in either of the two Brooklyn-bound lanes.
When the driver of defendant’s truck operated the vehicle in the wrong way in the middle lane and continued to operate it in the wrong way in the farthest left lane for him he was guilty of a technical violation of these public traffic regulations.
His reason for getting into the wrong lane may have been good and have been sufficient to have excused the violation; he may, without carelessness, have lost control of his vehicle; something may have happened to it which he would not reasonably have anticipated. He may have been able to make a valid and convincing explanation why he was there and why *378lie injured plaintiff Lo Piccolo when he was there; but he gave no explanation.
We would think a case of negligence had been made out prima facie on this showing alone. If a driver runs through a red light and knocks a man down, he will be entitled to be free from the imposition of damage if he makes a good explanation showing it was not his fault; but it would not be easy to free him both from liability and from making the explanation; and we would say at once and as a matter of course in such a case that prima facie a cause of action in negligence had been made out on such a showing alone.
The operation of a motor vehicle on the wrong side of the road has many times been held in New York to constitute negligence prima facie. (See, e.g., Meyer v. Whisnant, 282 App. Div. 930; Clifford v. Sadlowski, 268 App. Div. 941; Dougherty v. Braddock Automatic Music Corp., 277 App. Div. 923; N. Y. Auto. Law, § 2022.) As Kadien, J., notes in Betts v. Queens Farms Dairy Co. (162 Misc. 583, 584), there is a “ presumption of negligence ” against the driver involved in a collision on his wrong side of the road. It is not easy to distinguish the case before us from those which rest on the general rule that a violation of traffic statute or regulation, if it causes injury, will prima facie be deemed negligent.
It had been drizzling on the day of the accident and there is proof that the bridge was slippery; but on cross-examination of one of plaintiffs’ witnesses defendant developed that it was not “ very slippery ”. It seems fair to assume that the surface of the bridge was wet and slippery as it would be on any one of the numerous rainy or drizzly days of the year which are the inescapable incidents of our climate.
There is nothing whatever in the record to support the argument of the defendant here that the bridge surface created any hazard or played any part in the occurrence of the accident. A policeman assigned to the Harbor Precinct on traffic duty on the Manhattan Bridge who was at the scene of the accident testified that in this area the construction of the surface of the bridge consisted of concrete “imbedded in the steel mesh and that the steel mesh was raised above the concrete.”
Trial counsel for defendant described this as ‘ waffle iron like ’ ’; but there is no proof that this was not a sound way to construct and maintain the bridge surface; or that the area which the steel rose above the concrete bed did not actually add to the friction and hence to the stability of rubber-tired wheels moving over it. The inference is not readily dcducible that this was some patch of defective construction upon which *379the defendant’s driver came suddenly and found himself in danger.
On this important point the bridge policeman testified that ‘ ‘ the greater portion of the bridge is of this material but there are certain spots that is solid concrete.” It is not possible to think that the designers of the bridge would make a special effort at what must have been additional expense to lay down a surface for the entire bridge that would create a special hazard in wet weather.
There is no showing whatever that this bridge which carries an enormous volume of traffic, in wet weather as in dry, was not well designed for its purpose or that its surface has any tendency whatever to cause any of the many thousands of drivers who use it with reasonable care to lose control of their vehicles and run into others. We regard the bridge surface as described in this record as an inadmissible excuse for the behavior of defendant’s truck.
But even if there were no proof in the record in the direction of showing negligence affirmatively, and the happening of the accident could be looked at as in a factual vacuum — a pure event without demonstrated cause—we would still be of opinion that a case had been made out prima facie; and that if no acceptable explanation be given by defendant, a plaintiffs’ verdict would be warranted.
To reach such a conclusion as this requires a careful re-examination of Galbraith v. Busch (267 N. Y. 230, supra). The fulcrum of decision in that case is that the plaintiff was defendants’ guest passenger. There are words in the opinion of Judge Lehman, true enough, which deal with general concepts of liability; but the heart of the case depended on the sort of duty which a man owes to one he invites to ride Avith him in a motor vehicle.
It is the nature of this duty which created the logical impasse for which the opinion could find no acceptable escape. This impasse may be very simply stated: the invited passenger in getting in the car ‘ ‘ assumed the risk of any defect ’ ’ in the car not knoAvn to the defendants; but the defendants would be liable to the passenger for their negligence in the operation.
Upon a record such as Galbraith presented, in which it Avas equally possible to find that the accident occurred either through a defect which the invited passenger was deemed by the court to have “assumed”; or through negligence, the inference of negligent operation could not be draAvn for the explicit reason that the inference of cause of accident through defect in the car could not be eliminated (p. 235).
*380It is perfectly clear that this narrow situation of two inferences applicable to a passenger’s cause of action was the controlling consideration of decision in the case; and that this was the issue debated by the court is laid down in the dissenting opinion of Chief Judge Crane who addresses himself squarely to the problem of the guest passenger, as indeed does the majority opinion of Judge Lehman.
That this rule has thus far in New York been one applied to guests is manifest from the cases which followed Galbraith in the Court of Appeals. Lahr v. Tirrill (274 N. Y. 112) was a guest case; Marinan v. Kronberger (280 N. Y. 640) was a guest case; and Cole v. Swagler (308 N. Y. 325) was a guest case. The Third Department case of Hollenbeck v. Hollenbeck (286 App. Div. 937) was a guest case. In this court Bennett v. Edward (239 App. Div. 157) holding the other way, referred to by Chief Judge Crane in his dissent in Galbraith and necessarily overruled by that decision, was a guest case. This narrow doctrine, applying in a very limited area, has not been extended by the Court of Appeals to parties who are not guests; and it ought not be extended by us.
The problem of balanced inferences created by the constructive assumption of risk by an invited guest for all defects in a car not known to the owner which may come to stand in the way of a guest’s right to recovery if he is hurt, has no logical application to injuries done to strangers by the operators of vehicles.
The injured stranger, unlike Mrs. Galbraith, has assumed no risk in connection with the operation of the vehicle which does him injury. He has the right, on the other hand, to assume that when he uses a public highway he will not be run into or run down; and if he shows a court that he has been injured under circumstances from which the inference of negligence may reasonably be drawn, it ought to be held he has made out a case prima facie even though some countervailing inferences are also admissible.
The rule that a case is made out in such circumstances is one of very general acceptance under firmly established principles; and one good statement of it, in Corpus Juris Secundum, Negligence (Vol. 65, § 220 [2], p. 987) is that “ where the thing which caused the injury complained of is shown to be under the management of defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of expía*381nation by defendant, that the accident arose from want of care ”. The decision of this court in Locicero v. Messina (239 App. Div. 635) is quite consistent with this.
To hold that the owner of a vehicle, who runs into a stranger on the street in circumstances which could be held to be negligent, need make no explanation in the absence of a showing by plaintiff of the piecemeal processes by which the defendant caused the accident has grave implications in its impact on modern judicial policy. For one thing, the temptation by a driver who causes injury to sit tight and make no explanation and thus safely escape liability will often be deemed quite irresistible.
We thus reach the view that the complaint ought not to be dismissed; and having reached that we move without difficulty to the further view that the verdict for the defendant was against the weight of the credible evidence and that the determination of the Judge at Trial Term to set it aside was justified.
The inference of negligence to be drawn either from the affirmative proof of negligence in the record or from the bare happening of the accident in the circumstances disclosed is, of course, in either case within the area of fact finding; and within the power of the jury to draw or not to draw the inferences; and cannot be required of the jury as a matter of law.
But the court has the power and the duty upon this kind of a record as well as any other, of deciding whether the verdict as given is consistent with the weight of the evidence; and we are of opinion that this verdict, technically within the legal competence of the jury, is strongly against the weight of evidence on the whole record.
There is here, on the facts, essentially a case of negligence wholly unexplained on the record; and the Judge at Trial Term in exercising the duty that was his of supervising fairly the work of the jury in the case before him, was warranted in directing that after this unusual result, there be a new trial.
The order should be affirmed, with costs to abide the event.
Babin, J., concurs with Breitel, J.; Botein, P. J., concurs in result in opinion; Bergan, J., dissents in opinion in which McNally, J., concurs.
Order reversed on the law and on the facts, and in the exercise of discretion, with costs to the appellant; the verdict in favor of defendant is reinstated and judgment is directed to be entered in favor of the defendant dismissing the complaint on the merits, with costs.