Davidson v. Hicks

• Citation: 228 N.Y.S.2d 439,34 Misc.2d 451
• Parties: Walter E. DAVIDSON and Sylvia A. Davidson, his wife, Plaintiffs, v. Kenneth T. HICKS, Defendant.
• Decision Date: 23 May 1962
• Court: New York District Court

Page 439

228 N.Y.S.2d 439

34 Misc.2d 451

Walter E. DAVIDSON and Sylvia A. Davidson, his wife, Plaintiffs, v. Kenneth T. HICKS, Defendant.

District Court of Nassau County, Second District.

May 23, 1962.

McKeown & Castellano, Mineola, for plaintiffs.

Maurice J. Daly, Garden City, for defendant.

BERNARD TOMSON, Judge.

The parties have stipulated that witnesses, if called, would testify that in some unexplained way, the defendant's motor vehicle, which had been parked in a driveway in the early morning of December 27, 1959, crashed into the plaintiffs' house and caused $1,435 damage. The driveway has a 'slight incline' to the street, which in turn inclines downward toward the plaintiffs' house. The stipulation recites that the defendant would testify that:

'He neither saw nor heard anyone at or near the car, and was unaware that it was not in the place in which he had parked it until he was awakened during the night and thereafter learned that the car had somehow moved or been moved from the place where he had parked it down to the street and had been turned at right angles and allowed to proceed down the street and eventually crash into the house occupied by plaintiffs at the end of the street where it dead ends at Pinewood Road, Incorporated Village of Flower Hill, New York.

'At the time he parked the car he removed the ignition key from it, but the doors, which were capable of being locked, were left unlocked. At the same time, he removed the ignition key from the switch, set the emergency brake and put the car in gear. He did not authorize anyone to use the car or to move it from the place where he had parked it. He does not know the name or names of any person or persons who may have moved the car, and he is without knowledge of the manner in which it got from the place where it was parked to the point of contact with plaintiffs' house.' (Emphasis supplied.)

The plaintiffs rely on the prima facie inference of negligence that flows from the movement of the automobile from the place where it was parked to the point where the damage was caused, the attendant circumstances, and the failure of the defendant to come forward with testimony which would negate the prima facie inference.

Although it has been stated that only the ordinary care of a reasonably prudent man is the duty imposed under the circumstances here (Touris v. Brewster & Co., 235 N.Y. 226, 139 N.E. 249, rehearing denied, 236 N.Y. 510, 142 N.E. 263) and that the requirement placed upon an operator leaving a parked automobile unattended is to secure it so that it will not move except through an unanticipated intervening external cause (Maloney v. Kaplan, 233 N.Y. 426, 135 N.E. 838, 26 A.L.R. 909; Carney v. Buyea, 271 App.Div. 338, 65 N.Y.S.2d 902; leave to appeal denied, 271 App.Div. 949, 68 N .Y.S.2d 446), there is a presumption of negligence arising from the happening of an accident caused when a parked unattended vehicle moves, in the absence of evidence which would negative negligence on the part of the defendant. In the majority of jurisdictions the cases reach this result in reliance upon the doctrine of res ipsa loquitur. (See 16 A.L.R.2d 984.) The New York cases, though reaching the same result, seem to rest on the prima facie inference of negligence which follows the happening of an accident on similar facts. (See Rintel v. Dairymen's League Cooperative Ass'n, Inc., 178 Misc. 316, 34 N.Y.S.2d 348; Levy v. Stotchik, 132 Misc. 453, 230 N.Y.S. 196.)

A close reading of the stipulations indicates that the defendant has not produced any evidence which would cause this Court to conclude that the accident occurred through some cause other than his negligence. The possibility of the intervention of some third person is a matter of pure speculation and renders the facts here distinguishable from those in Dwarte v. First Westchester National Bank, 5 A.D.2d 1011, 174 N.Y.S.2d 308 (but note holding there that a question of fact was made out on the theory that the defendants were negligent in parking the vehicle, citing Maloney v. Kaplan, supra); Mann v. Parshall, 229 App.Div. 366 241 N .Y.S. 673; and Tierney v. New York Dugan Bros., 288 N.Y. 16, 41 N.E.2d 161, 140 A.L.R. 534. (Cf. also DiSabato v....