We dissent and vote to affirm.
In so doing we do not find it necessary to inquire deeply into the effect of decisions on the subject of skidding. 'A contact resulting from skidding invokes no liability. This is so because in the present state of engineering knowledge a skid may result without any negligent act on the part of the driver of the skidding vehicle (Lahr v. Tirrill, 274 N. Y. 112). There must be additional proof to show that the defendant’s negligent driving caused the skid which, in turn, caused the accident. This is in accord with the general principle that it is always incumbent on the plaintiff to show that it was the defendant’s negligence that was the factor which caused the accident (Galbraith v. Busch, 267 N. Y. 230).
Here there was no proof of any negligence. It is argued that there is proof from which negligence might be deduced. We challenge the existence of such proof. Concededly, it had been raining for a considerable period. The pavement consisted of cobblestones, a surface unusually slippery when wet. The evidence of the plaintiff is that defendant’s car started to skid while 25 feet north of the intersection. There was absolutely nothing to show that, had defendant’s car not skidded, he would not have passed behind plaintiff’s truck without contact. Concededly, there was no proof of excessive speed (though it is argued from a nice calculation of respective speeds and distances that this may be inferred) nor, more important, is there anything to show that excessive speed, if it did exist, caused the skid (cf. Cole v. Swagler, 308 N. Y. 325). It is argued that the jury might have found that the skid was the result of improper application of the brakes. But there is not the slightest evidence that the brakes were applied, let alone improperly. (Note there was such evidence taken on defendant’s counterclaim, taken after the complaint was dismissed, but this evidence is not properly part of the case on appeal.)
The complaint was properly dismissed.
Bbeitel, J. P., and McNally, J., concur with Wither, J.; Breitel, J. P., also concurs in separate opinion; Steuer, J.. dissents in opinion, in which Valente, J., concurs.
Judgment reversed on the law and a new trial granted, with $50 costs to appellants.