Opinion
December 7, 1961
Appeal by defendant in a personal injury action and its derivative counterpart from an order of the Supreme Court, Broome County, granting plaintiffs' motion for a new trial on the grounds of newly discovered evidence, surprise and in the interest of substantial justice. Cross appeal by plaintiffs from the order of the court denying their motion to set aside the verdicts pursuant to section 549 of the Civil Practice Act. These actions by a husband and wife arose out of a collision of automobiles owned and operated by the plaintiff wife and the defendant in an easterly direction on a four-lane highway running between Endicott and Binghamton, New York, in the midafternoon of August 13, 1957. Mrs. Romeo testified that she was driving in the fourth or fifth position in a line of traffic at a rate of speed of about 30 miles per hour and at a distance of approximately 20 feet behind the immediately preceding car. When the line slowed, she brought her automobile to a gradual stop about two feet from and without contact with the car ahead and while in a stationary position it was struck in the rear by defendant's following vehicle which, prior to the accident, she had not noticed. Defendant testified that he observed no warning of any kind given by Mrs. Romeo before decreasing her speed or stopping. Two passengers in his car saw no warning lights emanating from the rear of plaintiff's car before the accident. There is no testimony by her that any cautionary manual signal was given or that working stop lights were mechanically applied as she proceeded to a stop. That the defendant was negligent is clear. However, whether the performance of the acts of observation and warning which Mrs. Romeo omitted would have avoided the accident presented a question of fact for the jury on the issue of her freedom from contributory negligence. In our view the verdicts were neither contrary to nor against the weight of the evidence. (Vehicle and Traffic Law, § 83, subd. 1; Cvik v. Twining, 13 A.D.2d 853; Parrott v. Joseph, 9 A.D.2d 991; Cyr v. McGrath, 8 A.D.2d 898; Becker v. Beir, 275 App. Div. 146; Bacon v. Rochester Tr. Corp., 1 A.D.2d 759; Miller v. Perroni, 249 App. Div. 763. ) Although no cause of action was asserted for damages to plaintiff's vehicle, the evidence of the parties was in sharp conflict as to their extent and location. In rebuttal plaintiffs produced as a witness one Baldwin, an automotive body and fender mechanic, who on direct examination testified on these subjects. On cross-examination he stated that the injured plaintiff, Mrs. Romeo, had driven the vehicle to its place of inspection in Owego, New York, on August 15, 1957. With some confusion he reiterated his statement on redirect examination by plaintiffs' counsel. After the trial Baldwin's recollection was refreshed by one Cole, the then manager of the automobile agency from which plaintiff had purchased the car, to the effect that he had confounded the occasion of the inspection to which he had testified with one made by him of the same vehicle at the same place but for another purpose several months earlier. At a court-conducted hearing Baldwin stated that he had mistakenly identified Mrs. Romeo as its operator on the occasion of the second inspection. The proof upon which plaintiffs essentially rely — the recantation by Baldwin and an affidavit of Cole that Mr. Romeo, rather than his wife, was the driver of the car — fails to satisfy the standards prescribed by the decisional law of the State for a new trial on the ground of newly discovered evidence. ( Amalfi v. Post McCord, 250 App. Div. 408, 413.) At the trial the plaintiffs made no claim or intimation of surprise at the testimony of Baldwin and requested no adjournment, the withdrawal of a juror or other relief. They cannot now be heard to complain about the adverse verdicts on the basis that they were surprised. ( Weaver v. Scripture, 125 Misc. 741, affd. 214 App. Div. 852 and cases cited therein.) Without specific reference to the inspection incident, Mrs. Romeo originally testified that she did not drive her automobile until May, 1958 and later revised the date to November, 1957. A physician who examined her on behalf of defendant on September 17, 1957 stated without contradiction that she then told him that upon the suggestion of her doctor, she had previously driven to and from Syracuse. The medical evidence is in agreement that Mrs. Romeo was suffering from a whiplash type of injury on August 15, 1957. In the state of the record any impact of Baldwin's unwitting error on her credibility was not such as to warrant the exercise of the court's discretion in the interest of justice. Order denying plaintiffs' motion to set aside the verdicts affirmed and order granting them a new trial reversed, without costs.
I am in entire accord with the memorandum for affirmance of the order denying plaintiff's motion to set aside the verdict as against the weight of the evidence and for reversal of the order granting a new trial because of newly discovered evidence; and merely note any additional comments which may afford it some further support. Our decision in Cyr v. McGrath ( 8 A.D.2d 898) seems to me to mandate affirmance of the order denying the motion to set aside the verdict. Although in Cyr the plaintiff "stopped very suddenly" while here the plaintiff said that she "gradually came to a stop", her testimony, under the circumstances of this case, seems to me to warrant even more strongly a finding of her contributory negligence; for if she had time to stop "gradually" after having the benefit of the warning signals from the cars ahead, then she had ample opportunity (1) to observe defendant's car to her rear (see Cvik v. Twining, 13 A.D.2d 853), which concededly she did not; and (2) to give to defendant the same kind of signal that had advantaged her, and the finding, perhaps implicit in the verdict, that she did not signal was warranted by her quite evident failure to sustain the burden of proof in this respect. The case of Severance v. Meade ( 12 A.D.2d 870) seems to me completely distinguishable, exactly as it was distinguished in Cvik ( 13 A.D.2d 853, supra).
There should be a new trial, not for newly discovered evidence, but because the verdict for the defendant is quite strongly against the weight of evidence. It is not disputed that plaintiff Viola M. Romeo stopped her car because the line of traffic in which she was moving, with defendant behind her, stopped. There is no competent evidence whatever of any observation by anyone that she had stopped suddenly. Plaintiff herself testified she stopped gradually because the line of traffic ahead was stopping; and neither defendant nor either of his two passengers testified how she stopped. Defendant Haranek on direct examination by his own lawyer was asked these questions: "Do you know whether, at the time you hit the car, it was stopped or moving? A. I think it came to a sudden stop. [Motion to strike "what he thinks"]. Q. Do you know whether the car was stopped or moving, if you know? A. It wasn't moving; it must have been stopped. Q. How long had it been stopped, do you have any idea? A. I didn't have any idea. Everything happened so fast. I couldn't describe the time, how long it was." Defendant testified at the time of collision he was moving at 15 miles an hour and he had been moving at 25 miles per hour "about three car lengths in back of Mrs. Romeo". To the question that "you didn't bring your car to a stop before you hit her?", he answered "That's right." He testified he heard screeching of brakes before the collision, but there is no proof whether this emanated from plaintiff's car or from a car ahead of her. Plaintiff's car was in plain sight; defendant's report to the Motor Vehicle Bureau stated a car in the line of traffic ahead of plaintiff's car made a left turn; and it is clear that the whole line of traffic ahead of plaintiff and defendant stopped. Defendant should have been able to stop when plaintiff stopped; and his failure to see stop lights on the plaintiff's car is certainly not conclusive that the lights did not go on when the record is seen in full context. It is very clear that the negligent failure of defendant to observe traffic conditions in plain sight ahead of him caused him to run into plaintiff's car, which defendant himself testified was stopped when he hit it.