Summary
In France (supra) this court found that the driver had no time to react to the operation of the other vehicle and that the emergency created by the other automobile was in all probability the sole cause of the accident.
Summary of this case from Tenczar v. MilliganOpinion
February 10, 1971
Appeals from judgments of the Supreme Court, entered June 11, 1969 and June 25, 1969 in Schenectady County upon a jury verdict in favor of plaintiffs. The defendant Angelo was proceeding easterly on Route No. 7 and as demonstrated by the exhibits was in close proximity to the curb on the south side of the road. The operator of the colliding automobile (whose interest was settled) was proceeding west, veered from his side of the road across the mall onto Angelo's side of the road and collided with his automobile. The issue which the jury was required to decide as to the defendant Angelo was whether the alleged excessive speed of his automobile was a proximate or concurring cause of the accident and on this appeal the question for this court is whether or not the verdict was against the weight of the evidence and contrary to the law. The verdict should be set aside and the judgments reversed on the law and the facts and a new trial ordered with costs to abide the event. Giving the plaintiffs the most favorable version of the evidence, it was established that the Angelo automobile in which they were riding was proceeding at 70 miles an hour in a 40 mile speed zone, which testimony was admitted without objection. They observed the other automobile coming around a curve, a distance of about 500 feet and traveling at 70 or more miles an hour, cross from its side of the road diagonally over the mall and into the Angelo car proceeding on its own side of the road; that from the time the automobile first came into view at the most not more than ten seconds elapsed. All of these observations were made at 11:30 in the evening on a dark and rainy night when the roads were wet and that the collision occurred within "split seconds", but whatever observations the plaintiffs testified to, it is undisputed that the Angelo car was at all times on its side of the road. Issues of credibility were of the utmost importance in the jury evaluation of such evidence in this case as might possibly be relied upon to find that Angelo was negligent. Upon the present record, if Angelo were negligent, it would be premised solely on excessive speed as testified to by the plaintiffs and, assuming that fact, it would not establish that speed was the proximate or the concurring cause of the accident ( Meyer v. Whisnant, 307 N.Y. 369). Under the proof and the charge the jury was allowed to speculate as to the controlling issue of proximate and concurring causation and the verdict was against the weight of the evidence. It seems evident that Angelo had no time to react to the operation of the other automobile and that the confronting emergency created by the other automobile was in all probability the sole cause of the accident. (See Breckir v. Lewis, 21 A.D.2d 546; Gooch v. Shapiro, 7 A.D.2d 307, affd. 8 N.Y.2d 1088.) The circumstances here were such that the charge of the trial court should have been clear and explicit on the critical issue of causation. While it is noted that no exceptions were taken to the charge, it is the responsibility of this court in deciding the issue of the weight of evidence to determine whether under the charge the jury was sufficiently apprised of its responsibility as to that issue essential for liability. (See Green v. Downs, 27 N.Y.2d 205, 208.) Judgments reversed, on the law and the facts, and a new trial granted, with costs to abide the event. Herlihy, P.J., Reynolds and Greenblott, JJ., concur; Cooke, J., dissents and votes to affirm in the following memorandum: The jury's determination in favor of plaintiff passengers should not be disturbed. First of all, there was a considerable body of proof establishing negligence on the part of Angelo, with whom plaintiffs were riding. The uncontradicted evidence was that he was traveling about 70 miles an hour at a place where a 40 mile speed limit was in existence (cf. Conte v. Large Scale Development Corp., 10 N.Y.2d 20, 29; Healy v. Rennert, 9 N.Y.2d 202, 211; see Vehicle and Traffic Law, § 1180, subd. [b]). There was also proof from which it could be concluded that his speed was not reasonable and prudent under the conditions and in regard to the actual and potential hazards then existing (see Vehicle and Traffic Law, § 1180, subd. [a]) since it was proven that he was proceeding downgrade, upon both westbound lanes, at nighttime, while raining and slippery and as he was approaching a left hand curve, around which one could not see. Furthermore, the record reveals facts from which it could be found that Angelo failed to use reasonable care to avoid an accident. There was testimony that the Shannon vehicle was in view and on the wrong side of the highway from three to ten seconds and that when first seen it was about 500 feet distant. The highway consisted of four lanes, two for westbound and two for eastbound traffic. In the center there was no raised divider but rather a flat area level with the pavement, covered by macadam, testified to as being about as wide as a car but appearing from the exhibits to be considerably less. There was evidence that the Angelo vehicle, as it approached the point of impact, was "straddling both of the westbound lanes" and that, when the Shannon car came in view, Angelo did nothing to reduce his speed and kept going straight without changing course. Merely because Angelo had the right of way, he could not rush along heedlessly, for it was his duty to act with reasonable care to avoid the accident ( Wallace v. D'Aprile, 221 App. Div. 402, 405; De Rosa v. Harnett, 254 App. Div. 684; Kosowsky v. Coller, 227 App. Div. 740). Secondly, the jury had a right to find that the negligence of Angelo, in different aspects and in combination, was a concurrent proximate cause of plaintiffs' injuries. Angelo should have reasonably anticipated that, while rushing forward at such an excessive speed under the existing circumstances, he would not have been able to avoid such an accident. He was familiar with the approaching curve, right-hand for oncoming traffic and with the physical tendency for such of bearing left, and it was wet and slippery. Merely by virtue of the excess of his speed over the limit, he traveled 45 feet closer to the point of impact as each second ticked off. Upon sight of the Shannon car, he could have reasonably anticipated that the accident would happen unless he took steps to obviate it. He had the options of attempting to stop or of slowing down and of turning to the right or turning to the left, but he exercised none. It was reasonable for the jury to conclude that the accident would not have happened without the co-operation of Angelo's negligence ( Sweet v. Perkins, 196 N.Y. 482, 485). Negligence of such a gross character should not be immunized from liability, merely because the prepetrator was on the right of the thoroughfare. Nor is a conclusion valid here that the accident would have happened regardless of what Angelo did or failed to do. In McIntyre v. Fisher ( 263 App. Div. 1048, affd. 289 N.Y. 689), plaintiff was a passenger in Fisher's car which collided with one proceeding in the opposite direction on Fisher's side of the highway and which plaintiff suddenly saw coming toward them. The case was submitted upon the question of whether Fisher's speed was excessive and contributed to the accident and it was held the verdict for plaintiff should not have been disturbed. In Hartstein v. United States Trucking Corp. ( 260 App. Div. 643, mot. for rearg. den. 260 App. Div. 1006), arising out of an accident on a six lane roadway, it was held that the jury could have concluded that the chauffeur of a northbound truck could have avoided the accident by turning to the extreme right of the northbound roadway and that his failure so to do was a concurring act of negligence which resulted in the death of plaintiff's decedent. The pertinent rule was stated to be (p. 645): "`The mere fact that the driver of an automobile is on the right side of the road does not necessarily determine the presence or absence of negligence on his part. * * * The speed of the automobile and other surrounding circumstances are all to be considered on the question of his negligence. Thus, though one has turned to his side of the highway when meeting another vehicle, an issue may remain for the jury as to whether reasonable care does not require that he should have turned out farther and thus have avoided the collision.'" At the conclusion of the charge, appellant's attorney stated he had no exceptions. His sole request, concerning proximate cause, was granted — to his stated satisfaction. No error in the charge, fundamental or otherwise, has been claimed by appellant (cf. Belles v. Walter, 32 A.D.2d 866; see 8 Carmody-Wait 2d, New York Practice, § 57:16). The judgments should be affirmed.