
    Edward Cooper, Jr., Respondent, v. Greyhound Bus Corporation et al., Appellants.
    Third Department,
    May 23, 1961.
    
      Cook & Cook (Francis X Tucker and Vernon Murphy of counsel), for appellants.
    
      Roy L. Featherstone for respondent.
   Bergan, P. J.

Although the summary judgment may offer expansive future opportunity to dispose of negligence in a mass of personal injury litigation falling into a common pattern where there is not much real question of responsibility, its usefulness under the present practice is sharply circumscribed.

When we read rule 113 of the Rules of Civil Practice the way it is now written it permits summary judgment only where the showing is so clear that there is nothing left in the case to be tried out. To decide that question, the record must be looked at most favorably to the factual showing of the party asserting a right to trial.

The test established by the rule is that there is “ no defense ” or, conversely, that the action has “ no merit and the motion for judgment must be denied if any party shoAvs ‘‘ facts sufficient to require a trial of any issue of fact ” (rule 113, subd. 2, as amd. March 1, 1959).

Where there is a dispute as to hoAv an accident happened, and, if it happened the Avay defendant says it did, he might not be negligent, it would be rather clear that the court Avould not be sufficiently advised to rule that there is “no defense ”; and Avould be required to hold, on such a shoAving by defendant’s proof on the motion, that the facts were “sufficient” to ‘' require ’ ’ a trial.

What adds both to the intrinsic procedural difficulty of summary judgment and to some of the confusion in dealing with the device in negligence actions is that, even Avhere there is no dispute about ho\v an accident occurred, the presence or absence of negligence often remains a question of fact Avhich requires a trial under traditional principles of the Iuav of negligence.

Every foot of the Avay, and eAmry second of time, as two vehicles approach an intersection to collide may, for example, be so established and even documented as to put beyond argument hoAv an accident occurred; but there may still be a “triable issue ” on negligence, i.e., on the established facts, Avould the prudent and careful driver on the right have yielded rather than seized the right of way the statute gives him? And, indeed, long experience shows that just this sort of evaluation is the common kind of question Ave leave for resolution at the trial.

There are, no doubt, accidents involving moving vehicles that are so cut and dry that no possible defense and no reasonable need for a trial exists; and these are cases for summary judgment under the present rule. But if there is reasonable ground for debate, one way or the other, it seems clear summary judgment is not the answer.

This is the direction of decisional laAV since, by the 1959 amendment, the rule was made broad enough (i.e. “ (i]n any action”) to embrace the action for negligence. (Mandell v. Field, 11 A D 2d 1074; Sanzo v. Toklas, 10 A D 2d 931; Geler v. Weitzmam,, 12 A D 2d 947; Thum v. Zraick, 12 A D 2d 772; McLaughlin v. Martin, 12 A D 2d 789.)

Plaintiff in the case before us was a /passenger la -an. .automobile, operated at the north approach to Kingston on Route 9-W by Clyde Morrison. This car was struck in the right rear fender by a bus owned by defendant Greyhound Corporation and operated by defendant Murphy. Plaintiff was injured.

Both this vehicle and the bus had been proceeding south on Route 9-W, Just north of Kingston the road branches out, the one on the left by-passing part of Kingston; the branch the right going directly into the city. A traffic ligh„ conl,r<VfR the approach to these branches.

On plaintiff’s version of the facts he would be entitled to judgment. He contends that the car in which he was riding went into the left branch and, coming to a full stop because the traffic light was red for entrance to that branch, was struck by the bus. In his brief in this court he asserts that the bus driver “ did not see ” the red light and ran into the stopped vehicle.

But the deposition of the bus driver, defendant Murphy, which plaintiff used as part of the basis for his motion for summary judgment, shows a quite different version of the occurrence. Murphy sAvore that it looked to me he Avas going on the right road into Kingston — then all of a sudden he changed his mind * * * to make a left turn. ’ ’ He also sAATore that the bus was in the process of taking the right branch of the road for Kingston. For that branch, the traffic control showed a ‘ ‘ green arrow for right traffic ’ ’. At the time of impact, Murphy swore both vehicles AA^ere moving. Specifically in relation to the car in which plaintiff was riding he swore: ‘1 He was moving. ’ ’

All this presents an issue of fact as to hoAv the accident happened and as to the existence or absence of negligence on the part of Murphy, which precludes summary determination.

The order should be reA^ersed and the motion denied, Avith $10 costs.

Coon, Gibson, Reynolds and Taylob, JJ., concur.

Order reversed and motion denied, with $10 costs.  