Burnell v. La Fountain

• Decision Date: 10 December 1958
• Citation: 180 N.Y.S.2d 52,6 A.D.2d 586
• Parties: Minnie BURNELL, Plaintiff-Appellant, v. Herbert LA FOUNTAIN and Leo P. Lamkins, Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 52

180 N.Y.S.2d 52

6 A.D.2d 586

Minnie BURNELL, Plaintiff-Appellant, v. Herbert LA FOUNTAIN and Leo P. Lamkins, Defendants-Respondents.

Supreme Court, Appellate Division, Third Department.

Dec. 10, 1958.

J. Byron O'Connell, Plattsburgh, for plaintiff-appellant.

Carter & Conboy, for defendant-respondent, Leo P. Lamkins (Clayton T. Bardwell, Albany, of counsel).

James A. Fitzpatrick, Plattsburgh, for defendant-respondent, Herbert LaFountain.

Before FOSTER, P. J., and BERGAN, GIBSON and REYNOLDS, JJ.

BERGAN, Justice.

Plaintiff Minnie Burnell was injured while riding as a passenger in an automobile driven by defendant LaFountain in Plattsburgh. This car, proceeding in an easterly direction in Cornelia Street, was in the process of making a left turn to cross over the street to a private driveway when it came in contact with an automobile of defendant Lamkins which was proceeding westerly in Cornelia Street.

LaFountain testified that as he made the left turn across the lane in which Lamkins was driving 'the other car hit me in the front wheel'; and Lamkins testified that LaFountain came out of the line of traffic that was moving east when ten to fifteen feet away from him and came 'right direct in front of me'.

Although it is not suggested that plaintiff Burnell should have interposed to control LaFountain's car, or have given any direction to him in respect of its operation at the time the turn was being made, or just before it was made, the jury has found a general verdict for defendant LaFountain as well as defendant Lamkins.

On the plaintiff's motion to set aside the verdict the Judge at Trial Term was of opinion as to Lamkins that the verdict was consistent with the evidence on a failure to show Lamkins' negligence; but he felt LaFountain was guilty of negligence and that in order to find against the plaintiff in the action against LaFountain it was necessary for the jury to have found plaintiff herself negligent. The Judge was of opinion this had been adequately established; and, therefore, he denied plaintiff's motion for a new trial. Plaintiff appeals.

There is no evidence in the record of any fact in connection with the immediate occurrence of the accident, or its proximate cause, upon which a finding of the plaintiff's negligence could be based. (Cf. Clark v. Traver, 205 App.Div. 206, 200 N.Y.S. 52). She was not required to have anticipated that LaFountain in making the left turn in a stream of traffic would have directed the vehicle in front of Lamkins' car at a distance of ten to fifteen feet. When such a suddenly arising traffic movement is in the actual process of occurrence, no passenger is in a position to do much about it, either by counsel, protest, suggestion or physical interference.

LaFountain argues for affirmance of the judgment in his favor on appeal both that it could be found that he was not negligent and that plaintiff was herself negligent. The theory relied upon to support a finding of the plaintiff passenger's contributory negligence is not because of his own (LaFountain's) drinking it was negligent for the plaintiff to ride with him; and that, therefore, she assumed in advance the risk of any manner in which he may have driven his car and is barred from recovering for any act of negligence which he may have committed in the course of its operation while she was a passenger.

The legal theory which will sustain a state of such continuing and omnibus negligence, assumed from the moment a passenger gets into a motor vehicle, for any subsequent carelessness of the driver, requires close analysis; because it will be seen at one that it is quite different from a contribution by proximate carelessness to the actual occurrence of the negligent act itself which directly brings about the injury.

The case was submitted to the jury on general instructions on contributory negligence without treatment of the problem created by knowledge or acquiescence of the passenger in driving with a person whose capacity to drive is actually or apparently impaired by alcohol.

There are no doubt cases where a driver is so plainly drunk no sensible person would ride with him; and if a drunken accident occurred there would not be much difficulty in barring a recovery because of contributory negligence.

But there are many instances where a driver drinks a little with no visible effect; or where he drinks a little more and retains full control of himself and his vehicle; or where he drinks more or less, and the passenger is unaware either of the drinking or of any relaxation of caution until an accident occurs. In such cases, absent some negligence of the passenger in the operational occurrence of the accident itself, a finding of contributory negligence based alone on the election to ride with that driver would often be unwarranted.

Here the most favorable evidence to the respondent LaFountain's theory that his passenger was negligent in the act of riding with him as a passenger is his own testimony that in the afternoon some period before the accident he had 'about four bottles' of beer 'somewhere around there'; and no more.

He testified that plaintiff 'had a bottle' of beer and was present when he drank his four bottles. There is no proof of any fact or of any observation by any witness that LaFountain staggered, or that his speech was thick or incoherent; that his breath smelled of alcohol, or that he drove his car rapidly, erratically or abnormally.

The proof in the record is undisputed that his car was being driven slowly, at about five to ten miles an hour at the time of the accident. There is no proof that it was being driven carelessly at any time after plaintiff got in as a passenger. No appearance or act of LaFountain's is established from which it might be claimed plaintiff would reasonably be...