Mahoney, P. J., and Kane, J., dissent and vote to reverse in a memorandum by Kane, J. Kane, J. (dissenting). In our view, it was error for Supreme Court to charge the "emergency rule” under the circumstances presented in this case. The only witness able to provide any description of the operation of the vehicles immediately prior to the accident was the operator of the tractor trailer, fourth-party defendant Curtis A. Spiva. Hopf, operator of the Volkswagen in which plaintiff was a passenger, was killed in the accident and plaintiff has no recollection of the events immediately prior or subsequent to the collision other than the fact that, after encountering the hard-packed snow at some point prior to the scene of the accident, Hopf "was going real slow” and that she remembered "the last thing seeing on her speedometer was 15 miles an hour”.
Spiva testified that at about 1:00 p.m. on the date of the accident, he was traveling south at a speed of 38 to 40 miles per hour on a flat, two-lane highway covered with hard-packed snow. It was cold and cloudy at the time, but there was no precipitation. Spiva first observed a black Volkswagen approximately three fourths of a mile straight ahead approaching him in the northbound lane and traveling at about the same speed. Spiva testified that when the Volkswagen was about 200 feet away "she looked like she had run off the shoulder of the road and got sideways. She tried to steer it out of it, but instead cut in front of me.” The vehicle was about 50 feet away from Spiva when, according to him, it came across the highway into the southbound lane and struck the left front of his tractor trailer with its right front. This testimony, taken from an examination before trial of Spiva, was read into the record as part of plaintiff’s case. Spiva also testified in person and his description of the accident did not differ materially from his previous testimony, except for his additional observation that the Volkswagen’s "back end slid” first to the left and then to the right as it went off the shoulder at a point approximately 200 feet away from him and "[s]he got control of it and got about 50 feet and it slid again, crossed in front of me”. Given this uncontroverted testimony, we are persuaded that defendant was not entitled to the benefits of a charge under the "emergency rule”.
It is the law, as we understand it, that when a vehicle traveling on a slippery surface crosses over onto the wrong side of the road and damage results, a prima facie case of *655negligence is made out sufficient to entitle the jury to determine ultimate questions of liability (see, Pfaffenbach v White Plains Express Corp., 17 NY2d 132, 136). Under such circumstances, it is up to the defendant to offer an explanation for the occurrence which, again, is also for the jury to accept or reject (see, Coury v Safe Auto Sales, 32 NY2d 162, 164). Thus, since the initial action which placed Hopf in the position precipitating her vehicle’s movement into the path of the oncoming tractor trailer was, in the first instance, prima facie evidence of negligence on her part, the so-called resulting "emergency” was of her own making and Supreme Court should not have given the emergency charge (see, Jones v National Biscuit Co., 29 AD2d 1033, 1034).
Moreover, where, as here, the conditions of travel are such that the difficulties encountered by Hopf were to be reasonably anticipated, the "emergency charge” should not be given (see, Hardy v Sicuranza, 133 AD2d 138, 138-139; Shaw v Manufacturer’s Hanover Trust Co., 95 AD2d 738, 739; Voleshen v Coles, 60 AD2d 468, 471). Finally, and of critical importance, where, as here, there is an erroneous application of law which alters the duties of a party in a given set of facts in a close case of liability, the error is fundamental and requires a reversal of the judgment and a new trial (see, Estes v Town of Big Flats, 41 AD2d 681, 682).