
    Harry Yanz, an Infant, by Guardian, Etc., Appellant, v. John Grad, Respondent.
    (Supreme Court, Erie Special Term,
    February, 1914.)
    Negligence — contributory — action to recover for personal injuries — trial — motion for nonsuit.
    Where, in an action to recover for personal injuries received in a collision between an automobile operated by defendant and a motor cycle ridden by plaintiff, who was following the car in a city street about thirty feet behind, plaintiff testified that the car without any warning slackened its speed and turned to the left, that in attempting to pass the car his cycle was crowded in toward the curb, and having no opportunity to pass ran into the running board of the ear, was thrown to the ground and he was injured; and the trial judge sitting without a jury in disposing of defendant’s motion for a nonsuit, made on the ground that plaintiff was guilty of contributory negligence and had failed to show negligence on the part of defendant, said, “ I think as a matter of law I will have to grant the motion for a nonsuit,” a judgment entered on such ruling will be affirmed, as the trial judge must have found the fact or facts, from the evidence, upon which his ruling was predicated.
    Appeal from judgment of the City Court of Buffalo, dismissing the plaintiff’s complaint, on motion for a nonsuit.
    
      Clifford J. Chipman, for appellant.
    Edward T. Durand, for respondent.
   Wheeler, J.

This action was brought to recover for personal injuries received in a collision between an automobile operated by the defendant, and a motorcycle ridden by the plaintiff. At the close of the plaintiff’s case the court below granted the defendant’s motion for a nonsuit, and an appeal is taken from the judgment entered on that ruling.

The evidence shows that the plaintiff was riding Ms motor-cycle and going over a viaduct in Bailey avenue, near Broadway, in the city of Buffalo. The defendant driving an automobile was ahead and proceeding southerly. The plaintiff was following on his motor-cycle about twenty-eight or thirty feet behind. ' The plaintiff testified that the car, without any warMng, slackened its speed and turned to the left; that the plaintiff then attempted to pass the car and his cycle was crowded in toward the curb; that he had no opportumty to pass and ran into the running board of the car, was thrown to the ground, and received the injuries for which he sues.

The plaintiff testified that both he and the car were moving at the rate of about eight or ten miles an hour. Another witness called for the plaintiff testified they were running a.t a “pretty high gait.’’ The force of the collision was such, in any event, as to turn up the running board of the- car, break the forks of the motor-cycle and smash the machine. It is not claimed the plaintiff gave warmng to the driver of the automobile that he was beMnd or intended to pass. That, in outline, is the case presented to the trial court.

The trial court granted the defendant’s motion for a nonsmt. The motion was made on the ground that the plaintiff was grnlty of contributory negligence, and the plaintiff has failed to show negligence on the part of the defendant. In disposing of the motion the judge said: “ I think, as a matter of law, I will have to grant the motion for a nonsuit.” It will be noted that the record does not disclose whether the court granted the motion on the ground of a failure to show negligence on the part of the defendant, or on the ground that it appeared to its satisfaction the plaintiff was guilty of contributory negligence.

In nearly every case of collision between vehicles on public streets, the questions of negligence and of contributory negligence resolve themselves into questions of fact to be determined from the circumstances of the case. Steel-Drake Baking Co. v. H. C. & A. I. Percy Contracting Co., 140 App. Div. 113; Henning v. Rothschild, 34 Misc. Rep. 773; Earle v. Pardington, 116 N. Y. Supp. 675.

The most that can be claimed for the case as made is that it presented questions of fact to be determined from the evidence, as to both the defendant’s negligence and the plaintiff’s contributory negligence. Very often the fact of negligence is one of inference to be drawn from undisputed evidence, and, where a jury is sitting to pass on facts, the question must then be submitted to them for their decision.

In this case, had there been a jury impaneled to try the case, doubtless it would have been the duty of the presiding judge to have submitted to the jury, as questions of fact for their determination, whether upon the evidence given the defendant was negligent and the plaintiff free from negligence.

In this case, however, there was no jury called. The decisions of 'all questions of fact, as well as of law, rested with the trial judge. He has held the plaintiff failed to make out a case and nonsuited him. He must, therefore, have found from the evidence either that defendant was free from negligence or that the plaintiff was guilty of contributory negligence, either of which would preclude a recovery. The trial judge necessarily must have found the fact or facts on which he predicated his ruling from the evidence given.

This court; on appeal, should not disturb the findings of the court below on the facts, unless the evidence is of such a clear and decisive character as to preclude the findings made. We are unable to so hold on the evidence presented by this record.

It is urged that the return shows that the court held “ as a matter of law ” the nonsuit should be granted. But the law must be predicated on the facts, and, where the trial judge sits without a jury, it must be presumed: he found the necessary facts as the basis of his law, and the fact that he uses the expression quoted does not change the nature or effect of his determination. Miller v. International R. Co., 52 Misc. Rep. 347, and cases there cited, to wit: Elwell v. McQueen, 10 Wend. 520; Hess v. Beakman, 11 Johns. 457; Smith v. McMillan, 90 Hun, 542.

The judgment appealed from should be affirmed, with costs of appeal.

Judgment affirmed, with- costs.  