Calvert v. Katy Taxi, Inc.

• Decision Date: 26 June 1969
• Docket Number: Docket 32889.,No. 380,380
• Citation: 413 F.2d 841
• Parties: Geoffrey N. CALVERT, Plaintiff-Appellant, v. KATY TAXI, INC., a corporation, George Austin, Kenneth Hamblin and Geraldine Dufek, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

413 F.2d 841 (1969)

Geoffrey N. CALVERT, Plaintiff-Appellant, v. KATY TAXI, INC., a corporation, George Austin, Kenneth Hamblin and Geraldine Dufek, Defendants-Appellees.

No. 380, Docket 32889.

United States Court of Appeals Second Circuit.

Argued February 18, 1969.

Decided June 26, 1969.

COPYRIGHT MATERIAL OMITTED

William L. Schierberl, Thomas J. Whalen, Condon & Forsyth, New York City, for plaintiff-appellant.

James B. Reich, Brooklyn, N. Y., Nathan Cyperstein, Flushing, Leo Gilberg, New York City, for defendant Katy Taxi, Inc.

Paul A. Crouch, Robert Hill Nix, Baier, Chamberlin & Hartig, New York City, for defendant Dufek.

Before Mr. Justice CLARK,^* WATERMAN and FRIENDLY, Circuit Judges.

WATERMAN, Circuit Judge:

On September 23, 1964, at approximately 8:00 A.M. a taxicab owned by defendant Katy Taxi, Inc., after colliding with a small Triumph sports car at a busy New York City intersection, mounted the curb and struck and injured plaintiff while he was walking on the sidewalk on his way to work.¹ This action to recover damages for injuries sustained as a result of the accident was commenced in the United States District Court for the Southern District of New York initially against four defendants, the allegedly negligent drivers and the owners of the two vehicles involved in the collision. The basis for federal jurisdiction is diversity of citizenship. By the time the action came on for trial plaintiff was proceeding against only two of the originally named four parties-defendant. Plaintiff's case against the driver of the taxicab, an employee of Katy Taxi, Inc., was severed by the trial judge when the judge was informed that he had died in the meantime from causes unrelated to this accident, and the action against the driver of the sports car, one Kenneth Hamblin, who had never entered an appearance, was dismissed due to insufficient service of process upon him.²

I

The action was tried to a jury before Judge Motley. At the close of the plaintiff's evidence defendant Katy Taxi moved for a directed verdict. The trial judge reserved decision and the case proceeded. The defendant Geraldine Dufek, the alleged owner of the sports car, her husband and her son testified that she had sold the vehicle to Hamblin and had removed her plates about a month before the accident. The taxicab company presented no evidence and again moved for a directed verdict. Again the trial judge reserved decision and submitted the case to the jury which returned verdicts in favor of the defendant Dufek and in favor of the plaintiff against the defendant Katy Taxi for $5,000.00. Thereafter defendant Katy Taxi moved for judgment notwithstanding the verdict, and plaintiff moved that the award of damages be set aside as inadequate. Defendant's motion was granted and plaintiff's motion was denied. This appeal by plaintiff is from these two rulings below adverse to him.

The question presented is whether there was such a lack of evidence supporting plaintiff's claim that defendant was liable for his injuries as to justify the trial judge in setting aside the jury verdict awarding the plaintiff $5,000 and, despite that verdict, ordering the entry of a judgment for the defendant Katy Taxi. We hold that the district court committed reversible error; we find that the evidence the jurors had before them was sufficient for them logically to infer that the vehicle owned by Katy Taxi was driven in a negligent manner, and that that negligence was a proximate cause of plaintiff's injuries.

In reaching our determination we have not been unmindful of the well-accepted principle in all jurisdictions that the mere fact that an accident or injury has occurred, with nothing more, does not constitute a prima facie case of negligence. See Prosser, Torts § 39, at 215 (3d ed. 1964). And, also, we have not been unmindful that if injury is caused by the negligence of someone that negligence must be brought home to the defendant in the action before the plaintiff may be permitted to go to the jury, see, e. g., Corcoran v. Banner Super Market, Inc., 19 N.Y.2d 425, 431, 280 N.Y.S.2d 385, 388, 227 N.E.2d 304 (1967) (Keating, J.); nor that when a trial judge has viewed facts in the light most favorable to the plaintiff it appears that an inference that a particular defendant was not negligent is just as probable as an inference that that defendant was negligent, a trial judge has a duty, upon proper motion, either to direct the jury to return a verdict for the defendant on the ground that there is insufficient proof of liability to the plaintiff to justify submission of the case, or, if the case has been submitted, to set aside a verdict if one favorable to the plaintiff has been returned. See, generally, James, Proof of the Breach in Negligence Cases (including Res Ipsa Loquitur), 37 Va.L. Rev. 179, 185-186 (1951); Prosser, Res Ipsa Loquitur in California, 37 Calif. L.Rev. 183, 194 (1949); Wigmore, Evidence § 2494 (3d ed. 1940). Also, unless the trial judge thinks reasonable men could infer from the evidence a greater likelihood of negligence on the part of the defendant, the plaintiff has no right to go to the jury, Nash v. Raum, 149 F.2d 885, 888 (3 Cir. 1945); James, Functions of Judge and Jury in Negligence Cases, 58 Yale L.Rev. 667, 674 (1949), because any verdict for the plaintiff could only be the product of surmise, speculation, and conjecture, and could not be derived from fairly weighing evidence.

Though the ruling below was not explained on the record we have no doubt that the trial court intended to apply the above enunciated standards. We hold, however, that the court below misapplied those standards for we find that the total quantum of proof was sufficient to entitle plaintiff to have his case submitted to the jury and to support the jury's verdict in plaintiff's favor. Notwithstanding the lack of eyewitness testimony concerning the events of the accident,³ the jury reasonably and properly could have inferred from the physical evidence and the very convincing reconstruction of the path of the Katy vehicle that the taxicab was traveling at an excessive rate of speed when it and the Triumph collided. See Edick v. Davenport, 218 App.Div. 198, 218 N.Y.S. 120 (4th Dep't 1926). The physical evidence tended to prove that the defendant's car traveled approximately 100 feet from the point of its collision with the Triumph before it struck the plaintiff. Then, after hitting him, it continued its forward movement, careened off a brick building, and proceeded approximately another 30 feet before finally being halted by a store front.

Moreover, before striking the plaintiff, successive impacts, first with a street curb in mounting the sidewalk and then with a street sign it knocked down, must also have necessarily diminished the vehicle's speed. Yet, despite the additional impact from then striking the plaintiff, the taxicab's progress was never halted until it crashed into, first, the brick building, and then a store front. When these facts are taken into consideration, along with the testimony of the investigating police officer that Hamblin, the Triumph driver, admitted going through a red light as it was about to change,⁴ the 25 m. p. h. speed limit then required by law on the New York City street here involved, N.Y.C. Traffic Regulation § 60(a);⁵ and the fact that the accident occurred in the midst of the morning rush hour, a time of day when the traffic is ordinarily heavy,⁶ the jury could easily have concluded that the Katy vehicle was speeding and was being operated in an imprudent manner, for if the cab had been operated in a prudent manner it would not have traveled such a frightening course for so far a distance despite so many obstacles to its progress. See Brandt v. Jones, 7 A.D. 2d 234, 181 N.Y.S.2d 909 (3d Dep't 1959).

Katy Taxi, however, claims that the testimony of the police officer investigating the accident exonerates it from liability. This claim is without merit. The nub of the patrolman's testimony involves the notes of his conversation with the operator of the Triumph which he read to the jury. He testified that:

"Mr. Hamblin stated that a white Rambler jumped the light, blocking the light from his vision, and he said, `I went through also.\'"

We agree that this testimony from a disinterested police officer is surely worthy of belief and is entitled to a significant amount of weight. But this evidence merely shows the lack of due care on the part of Hamblin and by no means negates the possibility that the operator of the Katy vehicle was negligent.

Moreover, if defendant maintains that there is some question whether the evidence satisfied the "sufficiency of the evidence" standard required in all jurisdictions, we hold that, under the circumstances shown to have been present when plaintiff was struck and injured, plaintiff established a prima facie case of negligence under the law of the State of New York and his proof was sufficient to require the submission to the jury of the issue of defendant's negligence.

In diversity jurisdiction cases the several courts, state and federal, to which the plaintiff might have brought his action, have the power to formulate their own standards concerning the sufficiency of the evidence that would warrant submission of a case to a jury but, to date, we of this circuit have chosen to hold that a case should be submitted if submission would be required by the law of the state where the federal court is sitting, San Antonio v. Timko, 368 F.2d 983, 985 n. 1 (2 Cir. 1966); Mull v. Ford Motor Co., 368 F.2d 713 n. 4 (2 Cir. 1966); Hooks v. New York Central R.R., 327 F.2d 259, 261 n. 2 (2 Cir. 1964); Evans v. S. J. Groves & Sons Co., 315 F.2d 335, 342 n. 2 (2 Cir. 1963); Carlson v. Chisholm-Moore Hoist Corp., 281 F.2d 766, 769 (2 Cir.), cert. denied, 364 U.S. 883, 81 S.Ct. 172, 5 L.Ed.2d 104 (1960); Gutierrez v. Public Service Interstate Transp. Co., 168 F.2d 678, 679-680 (2 Cir. 1948); Noth...