Opinion
February 10, 1971
Appeals from judgments of the Supreme Court, entered June 12 and June 29, 1970 in Tompkins County, upon verdicts rendered at Trial Term. These actions arise out of an accident which occurred on November 1, 1968 on the campus of Cornell University in Ithaca, New York. William O. Hamby, a freshman at Cornell, was riding a motorcycle on a campus road, with a passenger, Donna F. Pattee on the rear seat. His motorcycle collided with an automobile driven by Joseph V. Bonventre, also a student. There is a conflict of testimony as to exactly how the accident occurred, but it is acknowledged that Hamby was driving downhill in a westerly direction and collided with Bonventre's vehicle, going in a northeasterly direction, as Bonventre was about to make or was making a left-hand turn of about 45 degrees into an adjoining street. Two actions were commenced in the Supreme Court. In the first action, brought by William O. Hamby and his father Henry, against Joseph Bonventre and his father Vincent, the owner of the car, the jury found for defendants. In the second action, Donna F. Pattee, the passenger on the cycle, was awarded damages in the amount of $20,000 against William O. Hamby, Joseph V. Bonventre and Vincent J. Bonventre. In addition, $4,000 was awarded to Clifford H. Pattee for medical expenses and loss of services. Appellants Hamby contend that the jury's verdicts were contrary to the weight of the evidence. Appellant Bonventre contends that respondent Donna F. Pattee was guilty of contributory negligence as a matter of law. Let us examine the proof. The evidence, including the photographs taken by the police, support the finding that Hamby was proceeding straight down the hill when Bonventre struck his motorcycle while Bonventre was attempting to make a left turn without signaling. Plaintiff's exhibit 12, a photograph, clearly shows the Bonventre vehicle in Hamby's lane of travel, halfway between the main road and the fork on the left. Since it is impossible for the motorcycle to have pushed the Bonventre vehicle into this position, it is apparent that Bonventre was entering the road on the left. Furthermore, Bonventre made admissions at the scene to Patrolman Dolloway that "he was going to make a left turn and the cycle was there" and that he did not stop on Campus Road before making his turn, nor did he put his directional signal on. Finally, there is the unrefuted testimony of an eyewitness to the accident that the Bonventre car came up Campus Road, swerved in toward West Avenue and hit the motorcycle, without signaling. A motorist turning left must yield the right of way to a vehicle going straight. (Vehicle and Traffic Law, § 1141.) Failure to yield the right of way in such circumstances is negligence ( Stevens v. Clark, 2 A.D.2d 791). Furthermore, a directional signal must be used before turning. (Vehicle and Traffic Law, § 1163; Alphin v. Dudish, 8 A.D.2d 567.) Taking into consideration all of the factors noted above, including the photographs, the testimony of the police and the eyewitness, the admission of the defendant Bonventre and the clear legal duty of Bonventre to both yield the right of way and to signal, there is no doubt that the defendant Bonventre was guilty of negligence. Hamby's motorcycle must have been visible to him long before the time of the collision and the only reasonable inference under the circumstances is that Bonventre tried to complete his left turn before the motorcycle arrived at the intersection. The credible evidence also clearly indicates that Hamby was operating his vehicle in a careful and safe manner and there is nothing in the record to indicate that he was in any way guilty of contributory negligence. For the jury to so find was clearly contrary to any fair interpretation of the evidence. Again, the testimony of Donald Harris, who saw the entire accident indicates that the accident was due entirely to the negligence of Bonventre. Hamby had the right to assume that a car coming in the opposite direction would not make a sudden turn in front of him. Under the circumstances, the jury's verdict was against the weight of the evidence and cannot be allowed to stand. Nor is there any evidence of negligence on the part of the infant passenger, Donna F. Pattee, and the verdict in her favor as well as that of her father, should be affirmed. A further ground for reversal is the highly prejudicial evidence in the record that Hamby was improperly operating a motorcycle on campus. A college rule apparently does not permit a freshman to operate a motor vehicle on campus. When Hamby was asked on cross-examination whether he was familiar with this rule, the objection of his counsel was overruled by the trial court on the ground that it was admissible on the question of Hamby's credibility. This evidence was not competent, since Hamby's failure to follow the rule does not indicate moral turpitude. (See Tryon v. Willbank, 234 App. Div. 335.) In the first action, judgment entered June 29, 1970 reversed, on the law and the facts, and a new trial ordered, with costs to plaintiffs to abide the event. In the second action, judgment entered June 12, 1970 modified, on the law and the facts, so as to vacate the judgment in favor of plaintiffs as against defendant William O. Hamby and dismiss the complaint as against such defendant, and, as so modified, affirmed, without costs. Herlihy, P.J., Greenblott and Sweeney, JJ., concur; Cooke, J., concurs in the following memorandum: I concur solely on the ground that the introduction of evidence, over objection, as to Hamby's violation of the college rule was incompetent and so prejudicial as to require reversal. Reynolds, J., dissents, and votes to affirm, in the following memorandum: I cannot agree with the reversal in this case. This was an intelligent verdict by this jury in allowing the passenger Pattee to recover against both defendants. I agree with plaintiff Pattee that it should be affirmed. Hamby admits that this is a dangerous, poorly lighted intersection and yet claims that he slowed down from whatever speed he was previously going to 20-25 miles per hour just before the crash. He was coming down hill and had to bear to the left at the intersection of West Avenue. The jury could have properly found that he was driving his motorcycle at an imprudent speed at this dangerous, poorly lighted intersection under all the circumstances. They could have also found that he was not maintaining a proper lookout. Section 1180 Veh. Traf. of the Vehicle and Traffic Law is applicable, "No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing", and in subdivision (e) of section 1180 "The driver of every vehicle shall * * * drive at an appropriate reduced speed when approaching and crossing an intersection". This jury chose to find on all the facts that each driver was lacking in prudence at this dangerous intersection. It seems to me that the jury used very good and careful judgment. We have to be careful not to assume the status of a juror. As BERGAN, J., stated in Rapant v. Ogsbury ( 279 App. Div. 298, 299): "The power to review a jury's verdict concedes, in the first place, the premise that a `question of fact is for the jury' and, of course, this is required for most cases by the Constitution. This concession carries with it the established rule that the `weight of evidence' is the jury's own province and that a court will not interfere unless it can see that no reasonable man would solve the litigation in the way the jury has chosen to do." We have here questions of fact and on this record they are certainly for the jury and we have no right to hold to the contrary as a matter of law.