Clark v. Donovan
| Decision Date | 30 June 1970 |
| Citation | 34 A.D.2d 1099,312 N.Y.S.2d 610 |
| Parties | Judith CLARK Respondent, v. Joseph DONOVAN, David Olson and Service Transport Co., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Adams, Brown, Starrett & Maloney (Daniel Roach), Buffalo, for appellant Donovan.
Weaver, Maghran & McCarthy, W. Donn McCarthy, Buffalo, for appellants Olson and Service Transport Co.
M. Robert Koren, John Bertell, Buffalo, for respondent.
Before GOLDMAN, P.J., and DEL VECCHIO, WITMER, GABRIELLI and BASTOW, JJ.
The evidence of the excessive speed of the Donovan vehicle was all-pervasive upon this trial. Under the circumstances it was against the weight of the credible evidence for the jury to find as they must have, that the alleged negligence of defendants Olson and Service Transport Company in crossing to the south side of the highway sooner than necessary to make the turn into the service station was the proximate cause of the accident. Moreover, the charge was inadequate and confusing in certain respects. The trial justice failed to explain the applicability, if any, of sections 1125(a) and 1126 of the Vehicle and Traffic Law which he charged, and in charging the doctrine of Last Clear Chance he stated that 'this is the rather complicated doctrine * * * and it is rather hard to explain', proceeded to give the history of the doctrine, referring to railroad crossings and trestles and repeated, 'It's a very complicated doctrine'. That the jury were confused is evidenced by their later questions to the Court concerning it.
'Where a charge is so inadequate as to preclude fair consideration by the jury of the issues, the judgment entered on the resulting verdict will be reversed and a new trial ordered' (United States Vitamin & Pharmaceutical Corp. v. Capitol Cold Storage Co., Inc., 21 A.D.2d 661, 249 N.Y.S.2d 725.)
Although exceptions were not taken to the errors in the charge, reversal may be based thereon in the interest of justice (United States Vitamin and Pharmaceutical Corp. v. Capitol Cold Storage, Inc., supra and Van v. Clayburn, 21 A.D.2d 144, 147, 247 N.Y.S.2d 310, 313--314). These errors, however, did not adversely affect defendant Donovan in his defense of plaintiff's action.
We observe that the trial justice correctly excluded the testimony of witnesses as to alleged statements of speed by the plaintiff over the citizens' band radio, installed in the Donovan automobile, while enroute shortly before the accident...
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