Opinion
January 30, 1962
Present — Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ.
Appeal by plaintiff-defendant Walsh from judgments entered against him after a joint trial of four automobile negligence actions and from orders denying his motions to set aside the verdicts and for a new trial. The lawsuits arose out of a rear-end collision between the tractor-trailer driven by plaintiff Neish, whose units were owned respectively by plaintiff-defendant Emanuel and plaintiff Aloi, and one owned and operated by appellant Walsh which occurred on a State highway known as Route 17 about seven miles east of Goshen, New York, at about 5 o'clock in the morning of November 28, 1958. The evidence indicated that it was dark and cold at the time and the presence of a slight haze and some ground fog at the place of the accident. The highway consisted of two concrete strips each approximately 24 feet in width separated by a center mall. A level shoulder, estimated by a State Trooper to be about 12 feet wide, adjoined the westerly lane. As Walsh proceeded southerly he experienced motor trouble as the result of which he drove his tractor-trailer partially off the highway and stopped astraddle the pavement and the shoulder to its right with about three or four feet of its eight-foot width projecting upon the pavement of the road. Ascertaining that the mechanical trouble was not remediable at the scene, he left to return to Goshen for assistance meanwhile leaving the vehicle in charge of a passenger. Appellant testified that before his departure he extinguished the headlights of the tractor but not the lights of the trailer. There was testimony by the passenger that he turned out the trailer lights immediately after the accident. It appears that there were reflectors and reflectorized tape on the rear doors of the vehicle. Concededly no flares were placed about the vehicle before the accident to indicate its presence as required by subdivision 17 of section 15 Veh. Traf. of the Vehicle and Traffic Law, to the violation of which Walsh later pleaded guilty. The version of respondent Neish was that he was proceeding in the westerly lane of the strip reserved for southbound traffic at about 50 miles per hour when, at an estimated distance of 50 to 75 feet from the stopped vehicle, his headlights disclosed its left corner reflector whereupon he applied the brakes of the tractor-trailer and swerved it to the left but not in time to avoid the collision. According to his testimony the lights of the trailer were then out. The points of contact between the vehicles were the left rear of the Walsh trailer and the right front of the tractor driven by Neish. There is other evidence in relation to the presence and absence of lighted tail lamps on the rear of the trailer at about the time of the collision. Appellant contends that Neish was guilty of contributory negligence as a matter of law in failing to observe the stopped vehicle, that the verdicts are against the weight of the credible evidence, that erroneous rulings of the trial court compel a reversal of the judgments and that in any event the verdict in favor of plaintiff Neish is excessive. On the record as a whole the issue of contributory negligence was one of fact for the jury and the trial court's denials of the motions to dismiss the complaints and to set aside the verdicts were not erroneous. ( Lonstein v. Onondaga Frgt. Corp., 265 App. Div. 978, affd. 290 N.Y. 735; Hager v. Paddleford, 252 App. Div. 819, affd. 278 N.Y. 515.) The limited use permitted by the trial court of 12 medical reports filed by Neish's attending physician in connection with his workmen's compensation claim arising out of the same accident seems to us to have balanced appropriately the recognized danger of prejudice to plaintiff which would arise from the injection of the subject of workmen's compensation in the trial of the case with the right of defendant to confront the medical witness with alleged prior inconsistent statements on the issue of his credibility and in the circumstances was not an improvident exercise of discretion. Nor do we perceive error in the court's refusal to grant appellant's request to charge further in respect to the application of subdivision 3 of section 15 Veh. Traf. of the Vehicle and Traffic Law. The verdict for the plaintiff was $30,000 reduced by stipulation to $27,500. At the time of the accident plaintiff Neish was 37 years of age. The record shows that as result of his disability he lost earnings in the amount of $2,097 and incurred medical and hospital expenses of $1,146.95. There was testimony by his attending physician delineating the nature and extent of the injuries which required two periods of hospitalization aggregating about 19 days and medical opinion evidence by the same doctor, uncontradicted by other professional proof, to the effect that plaintiff had sustained a 50% permanent loss of function of his back. We cannot say that the award of compensatory damages, as reduced by stipulation, was so disproportionate to the injuries as to be shockingly excessive. ( Reich v. Evans, 7 A.D.2d 765; Banks v. Begell, 1 A.D.2d 726, affd. 2 N.Y.2d 736.) Judgments unanimously affirmed, with costs.