Summary
In Schildkraut v Eagle Lines (126 A.D.2d 480, lv denied 70 N.Y.2d 605), we held that plaintiff established a prima facie case of negligence against the city based, inter alia, on its failure to provide improved illumination in the area where the accident occurred.
Summary of this case from Thompson v. City of New YorkOpinion
January 22, 1987
Appeal from the Supreme Court, Bronx County (Irwin Silbowitz, J.).
While the record discloses that a prima facie case in negligence was made out against the City of New York based on its failure to post certain traffic signs at or near the Jerome Avenue entrance to the eastbound lanes of the Cross Bronx Expressway, and to provide improved illumination in the area, we find that the jury's apportionment of relative responsibility as between the city and the codefendants, Eagle Lines and Bickford, the owner and operator, respectively, of the tractor trailer which collided with the rear of the deceased's vehicle, to be skewed. Clearly, Bickford was the major culprit in causing the accident. The only credible evidence on the subject indicates that he was speeding in fairly heavy traffic, traveling in the left lane of the expressway where trucks are not permitted, and, although the stalled traffic was visible for a distance of at least 800 feet, he did not brake until he was 60 feet away. A motorist is required to keep a proper lookout, drive at a speed appropriate to the circumstances and maintain a proper distance from the traffic ahead of him. Moreover, Bickford was operating a truck with defective brakes. In light of the foregoing, it is clear to us that the jury did not "appraise * * * correctly" the "relative persuasiveness and probative force" (Nassau-Suffolk Pet Supply v. Ashdown, 22 A.D.2d 891) of the proof bearing on the liability of Eagle and Bickford. In the circumstances, we believe that an apportionment of liability of 75% against Eagle and Bickford and 25% against the city more reasonably reflects the reality of the situation and we provide accordingly. We also find the wrongful death damages to be excessive to the extent indicated.
We have examined the other issues and find that they are without merit.
Concur — Kupferman, J.P., Sullivan, Rosenberger, Ellerin and Wallach, JJ.