
    In the Matter of Miles R. Kelley, Petitioner, against Joseph P. Kelly, as Commissioner of Motor Vehicles of the State of New York, Respondent.
   This is a proceeding under article 78 of the Civil Practice Act to review a determination made by the Commissioner of Motor Vehicles revoking petitioner’s operator’s license after a hearing. The commissioner found petitioner guilty of gross negligence in the operation of a motor vehicle, and revoked his license under section 71 (subd. 3, par. [e]) of the Vehicle and Traffic Law. Petitioner became involved in a collision with another ear on the evening of January 9, 1956, in the village of Massena, New York. The accident happened on Main Street, which was a four-lane blacktop highway. The weather was clear but the pavement was wet. Petitioner was traveling south, and ahead of him on the west side of Main Street another car, driven by a woman, was about to emerge from a gasoline station. According to her testimony she brought her car to a full stop and no part of it was in the roadway when it was struck by the petitioner’s car. The damage to both ears was severe, and in addition both drivers were rendered unconscious. The woman driver was thrown out of her ear into a snowbank, and petitioner sustained several cracked ribs. Petitioner had been drinking before the accident and admitted that he had three drinks of whiskey, two before dinner and a third five or ten minutes before the accident. The street lights were off at the time, due to a power failure, and petitioner said that he did not see the other ear because of this fact, and also because his own headlights were dirty. Despite this he admitted that he was driving 30 miles an hour in a 25 mile zone, and apparently crowding the curb line of the west side of the street. The police officer who investigated the accident was of the opinion that petitioner was intoxicated but the referee made no finding to that effect beyond stating the admissions of petitioner that he had been drinking. There are many and varied definitions of gross negligence, such as “ reckless driving ”, “ culpable negligence ”, “ criminal negligence”, and “a disregard of the consequences that may ensue from a given act”, and “indifference to the rights of others” (People v. Grogan, 260 N. Y. 138; People v. Angelo, 246 N. Y. 451; People v. Eckert, 2 N Y 2d 126; People v. Decina, 2 N Y 2d 133). Where casual, or slight negligence ends, and gross negligence begins may be difficult to determine, but essentially the issue is predominantly one of fact and not of law. Where there is room for the trier of the facts to draw different conclusions certainly the issue is one of fact. The findings here seem to be inaccurate in one particular, viz: “he failed to drive in his proper lane of traffic, instead he drove on the extreme right, in the lane reserved for parked or standing vehicles”. There was no proof that the extreme right lane was reserved for parked or standing vehicles, but the error is of slight consequence in view of the other evidence. On the whole record it cannot be said as a matter of law that the commissioner did not have substantial grounds to sustain his determination. Determination confirmed, without costs.

Foster, P. J., Bergan, Coon and Gibson, JJ., concur.  