Durham v. Melly
| Decision Date | 16 November 1961 |
| Docket Number | No. 2,No. 1,1,2 |
| Citation | 14 A.D.2d 389,221 N.Y.S.2d 366 |
| Parties | Clifford DURHAM and Rita Durham, Administrators of the goods, chattels and credits of Anthony L. Durham, deceased, Plaintiffs-Respondents, v. Leo T. MELLY and Bella M. Thomas, executors of the last Will and Testament of Clifford C. Thomas, deceased, and Bella M. Thomas, Administratrix of the goods, chattels and credits of Payne M. Thomas, deceased, Defendants-Appellants. ActionBella M. THOMAS, Administratrix of the goods, chattels and credits of Payne A. Thomas, deceased, Plaintiff-Appellant, v. Mae S. MANFRED and Clifford Durham and Rita Durham, Administrators of the goods, chattels and credits of Anthony L. Durham, deceased, Defendants-Respondents. Action |
| Court | New York Supreme Court — Appellate Division |
Dunk, Conboy, McKay & Bachman, Watertown (Claude H. Dunk, Watertown, of counsel), for defendants-appellants Melly and Thomas.
Robert H. Halliday, Potsdam, for plaintiffs-respondents Durham.
Dreiband, Bleecker & Silberman, New York City (Alexander Dreiband, New York City, of counsel), for plaintiff-appellant Thomas.
Scanlon, Wright, Willmott & Aylward, Watertown (Daniel Scanlon, Watertown, of counsel), for defendants-respondents, Manfred and Durham.
Before BERGAN, P. J., and COON, GIBSON, HERLIHY and REYNOLDS, JJ.
These actions arose out of a head-on collision which occurred at 12:15 a. m. on November 23, 1958 on route 56 in St. Lawrence County between a Chevrolet automobile owned by Mae S. Manfred and operated by Anthony L. Durham, and a Ford automobile owned by Clifford C. Thomas and operated by Payne A. Thomas. Both Anthony L. Durham and Payne A. Thomas died of injuries resulting from the accident. Action No. 1 was brought by the administrators of Anthony L. Durham against the executors of the will of Clifford C. Thomas and the administratrix of Payne A. Thomas. Action No. 2 was brought by the administratrix of Payne A. Thomas against the administrators of Anthony L. Durham and Mae S. Manfred. The two cases were tried together and the jury returned a verdict in favor of respondent in Action No. 1 in the total amount of $20,000 and found no cause of action in Action No. 2. Appellants moved to set aside the verdicts in both actions upon the grounds set forth in § 549 of the Civil Practice Act. It is from the denial of these motions and the judgments thereafter entered that appellants bring this appeal.
As a result of the collision Thomas and the three passengers in his car were instantly killed and Durham died nineteen days later. There were thus no eyewitnesses to the accident.
The highway on which the accident occurred runs generally north and south. It is of concrete construction and consists of two lanes--each 11 feet wide. The lanes are designated by a tar sealer joint and a single broken white line. At least, in the vicinity of the impact, the shoulders of the highway are sufficiently wide enough to accommodate an automobile completely off the paved portion.
Durham was proceeding in a southerly direction toward Hannawa Falls from Potsdam; Thomas was proceeding northward toward Potsdam from Hannawa Falls. The collision occurred on a straightaway portion of the highway shortly after the Thomas' vehicle had negotiated a slight curve to its left.
Photographic evidence indicates that the collision took place in the northbound lane. Marks on the road also indicate that at impact at least a part of Durham's car was 3.5 feet in Thomas' lane. Faced with the fact that Durham was in the wrong lane at impact the attorney advancing his claim postulated that the accident occurred when Durham, proceeding in his own lane and suddenly confronted with the Thomas' car in the wrong lane, applied his brakes and pulled to his left to avoid a collision only to have the Thomas' car return to its proper lane and strike him headon. The only evidence to support this theory in the record is a mark running from the point of impact 74.8 feet in a northerly direction and the testimony of one Belva Campbell. The mark indicates that Durham's car proceeded 34.4 feet in its own lane and then for the last 40.4 feet prior to impact was in the wrong lane. Respondents assert that this mark is a skid mark and that the course of the skid supports their theory of the accident. The record, however, does not reveal that the mark was ever identified as a skid mark and without such identification it is equally inferable that it was caused by a flat tire riding on its rim as the application of the brakes by Durham. Belva Campbell testified that as she was riding along route 56 toward Potsdam at about 12:00 on the night of the accident, she looked out the rear window of the car in which she was...
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...People v. Sansalone, 208 Misc. 491, 146 N.Y.S.2d 359 (1955); Bauer v. Veith, 374 Mich. 1, 130 N.W.2d 897 (1964); Durkam v. Melly, 14 A.D.2d 389, 221 N.Y.S.2d 366 (1961); Benton v. Pellum, 232 S.C. 26, 100 S.E.2d 534 (1957) all involve cases where the evidence disclosed substantial gaps in t......
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