Opinion
March 11, 1971
Judgment, Supreme Court, New York County, entered on July 9, 1970, after trial to a jury, in favor of plaintiffs-respondents, on the issue of liability, affirmed. Plaintiffs-respondents shall recover of appellant $50 costs and disbursements of this appeal. The dissent fairly states the facts, and no addition thereto is necessary except to point out that the circumstance that defendant-appellant's car was stopped in the roadway was not occasioned by "the directions of any police officer" (the only pertinent possibly exculpatory provision in the applicable Traffic Regulations [§§ 80, 81, subd. 5]). Defendant stopped of his own volition to ask directions and was referred to the next toll booth. Thus, he violated a regulation designed to prevent precisely the kind of accident here considered: on a "limited access roadway when all lanes are normally available for moving traffic [subd. 5]." In these circumstances, defendant's violation of the pertinent regulation was a proximate cause of the accident, concurrent with the negligent conduct of plaintiff's driver, for, without the negligence of both, this accident could not have happened.
The plaintiff, Maria Petru, was a passenger in a rented car driven by her daughter, Elizabeth. The defendant Cawley was an out-of-State motorist stopped in the right lane of the Henry Hudson Parkway. He was in conversation with a motorcycle policeman. Before aproaching the Cawley car, Elizabeth Petru (the driver) had intermittent but timely warning her brakes were defective. Nevertheless, she continued on her journey. As the Cawley car hove into sight, she attempted to stop, but her brakes would not hold. In my judgment, the proximate cause of the accident was the brake failure of the car in which the plaintiff was a passenger, a fact known to the plaintiff's driver before the accident, and the consequences of which were reasonably foreseeable. Stopping by the side of the road may have been a statutory violation; there is no proof that particular violation was a proximate cause of the accident, or that with reasonable foreseeability defendant Cawley should have clairvoyantly envisaged a car coming behind with defective brakes. I would reverse and dismiss the complaint.