Opinion
May 18, 1971
Appeal from a judgment of the Supreme Court, entered February 24, 1970 in Tompkins County, upon a verdict rendered at a Trial Term in favor of plaintiffs. Old Stage Road is a public highway running in a generally easterly and westerly direction in the Town of Dryden, Tompkins County, the macadam pavement of which is about 20 feet wide. Plaintiffs produced testimony: that on the north side of the road, in front of plaintiffs' home, the shoulder and a ditch were about 14 feet wide, there being a "slant-off" from the pavement to the bottom of the ditch of about one foot; that at about 5 o'clock in the afternoon on April 29, 1967, a clear day, Howard Schmoll drove a Fordson tractor with a rake down the more westerly of his two driveways, then down the north shoulder, turned sharply to the left towards the bank and stopped so that the front wheels of the tractor were beyond the ditch and the rear wheels on the shoulder with no part on the macadam; that while stopped and turning to adjust the rake, also on the shoulder, he was hit; that his wife, raking the lawn next door, saw "this truck" going up the road fast, heard a crash and saw that defendant's truck had hit the tractor on which her husband was sitting; that the front of the truck was damaged and the damage to the tractor was on the right side, without any to the rake; that there were marks made by the tractor leading from a point on the shoulder distant six feet from the pavement and leading 50 or 60 feet to the tractor's rear wheels which were on the road after the accident. Plaintiffs having made out a prima facie case of negligence ( Pfaffenbach v. White Plains Express Corp., 17 N.Y.2d 132; Czekala v. Meehan, 27 A.D.2d 565, affd. 20 N.Y.2d 686), the denial of defendant's motion for nonsuit under CPLR 4401 at the close of plaintiffs' evidence was correct. Defendant testified that between 1 and 3 o'clock on the afternoon of the accident he had four large glasses of beer, that about 5 he was traveling west on a straight section of said road at about 45 miles per hour and saw some deer in the field to the left which he watched two or three seconds and so as to completely take his eyes off the road, that when he looked back to the road he saw a tractor 10 or 12 feet in front of him, that his truck, after hitting the tractor, veered off the road into the ditch on the north side and the tractor slid to the center of the road. At a motor vehicle hearing he stated that, upon seeing the tractor, he hit his brakes and pulled to the left but something pulled him back. A trooper related that he could smell alcohol on defendant in a hospital after the collision. Since the evidence was not so preponderantly in defendant's favor that the jury could not have reached its conclusion on any fair interpretation thereof, the jury's verdict should not be disturbed as being against the weight of the evidence ( Knise v. Shearer, 30 A.D.2d 741). Although the charge used the term "substantial factor", found to be objectionable in certain cases (e.g., Acerra v. Trippardella, 34 A.D.2d 927; Maggio v. Mid-Hudson Chevrolet, 34 A.D.2d 567; Bacon v. Celeste, 30 A.D.2d 324), this charge as a whole, when taken with the court's explanation, did not constitute reversible error and adequately distinguished between the quantum of contributory negligence which would bar recovery and the causal relationship between that negligence and the accident (cf. Bazydlo v. Placid Marcy Co., 422 F.2d 842). In response to defense counsel's request that "you charge the Jury that in New York State we do not have the comparable negligence rule, and that if they find that the plaintiff is guilty of any negligence, no matter how small, and if it is a proximate cause of the accident", the court stated: "I have already charged it, but I will charge it this way: That negligence on the part of the defendant, no matter how slight it may be, if it is a proximate cause of the accident, is sufficient to impose negligence and liability on the defendant. Negligence on the part of the plaintiff, no matter how slight, if it is a substantial factor in producing the plaintiff's injuries, is sufficient to bar the plaintiff from recovery." Then followed an exception to the use of the word "substantial" and the court charged: "I use the word 'substantial' in connection with the definition of proximate cause, which I have already given to you and I would give it to you over again. When I say substantial, I mean that the negligence of either the defendant or the plaintiff must be a proximate cause of the injury, and an act or omission is a proximate cause of an injury if it was a substantial factor in bringing about the injury, that is, if it had such an effect in producing the injury that reasonable men would regard it as the cause of the injury." The jury was not told that there must be substantial negligence on plaintiff's part to bar his recovery and the jury did not evince confusion by requesting clarification. Judgment affirmed, with costs. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur.