Dutcher v. Fetcher

• Decision Date: 14 May 1992
• Citation: Dutcher v. Fetcher, 583 N.Y.S.2d 667, 183 A.D.2d 1052 (N.Y. App. Div. 1992)
• Court: New York Supreme Court — Appellate Division
• Parties: Richard A. DUTCHER, et al., Appellants, v. Laura B. FETCHER, et al., Respondents.

Page 667

583 N.Y.S.2d 667

183 A.D.2d 1052

Richard A. DUTCHER, et al., Appellants, v. Laura B. FETCHER, et al., Respondents.

Supreme Court, Appellate Division Third Department.

May 14, 1992.

Eugene F. Frink & Associates (Lawrence B. Lame, of counsel), Pawling, for appellants.

Wilson, Bave, Conboy & Bave, P.C. (John Perfetti, of counsel), White Plains, for respondents.

Before WEISS, P.J., MIKOLL, LEVINE, CREW and MAHONEY, JJ.

MAHONEY, Justice.

Appeals (transferred to this court by order of the Appellate Division, Second Department) (1) from a judgment of the Supreme Court (Hillery, J.), entered November 26, 1990 in Dutchess County, upon a verdict rendered in favor of defendants, and (2) from an order of said court, entered November 2, 1990 in Dutchess County, which denied plaintiffs' motion to set aside the verdict.

Plaintiff Shirley A. Dutcher was injured in an automobile accident when a vehicle driven by defendant Laura B. Fetcher crossed over a concrete curb divider on the Hutchinson River Parkway in Bronx County and collided with the vehicle in which Dutcher was riding (hereinafter Dutcher's vehicle). Thereafter, Dutcher and her husband commenced this action against Fetcher and the owner of Fetcher's vehicle sounding in negligence and seeking recovery for injuries sustained. During a trial limited to the issue of liability, it was established that Dutcher's vehicle was lawfully traveling in the left southbound lane of the Parkway. The road was wet from a previous rain. Neither Dutcher nor any of the other occupants recall seeing Fetcher's vehicle prior to the collision.

In her defense, Fetcher testified that she was traveling across a metal-surfaced drawbridge in the left northbound lane. She was traveling at approximately 40 to 45 miles per hour; the road was wet and slick. As she approached the end of the bridge a yellow cab, traveling in an adjacent northbound lane, suddenly swerved into her lane. As Fetcher swerved to avoid the cab, her car "hit a skid", went onto the divider, struck a light pole, crossed into the oncoming southbound traffic lanes and collided with Dutcher's vehicle. It is uncontroverted that Fetcher had not mentioned the existence of the cab or the alleged role it played in causing the accident prior to her testimony at trial; no mention was made by her at the scene, either to Dutcher or the responding police officer, in the subsequent motor vehicle accident report, as a defense in the answer or in her deposition testimony. In an apparent effort to establish that her trial testimony was a recent fabrication, Dutcher used the foregoing documents for purposes of impeachment. ¹ In addition to Fetcher's testimony, the defense produced an accident reconstruction expert who opined that, due to the decreased coefficient of friction of tires on a wet metal surface such as was involved herein, the sudden swerving of a vehicle was sufficient to bring it into a skid with the resultant loss of control that occurred. At the conclusion of the proof, plaintiffs requested no charges other than the "standard" charges. Supreme Court charged the jury on, inter alia, contributory negligence and the emergency doctrine. Plaintiffs specifically objected to the former charge but not the latter. Three special questions were propounded to the jury the first of which required them to determine if Fetcher was negligent and her negligence was the proximate cause of this accident. The jury returned a verdict in favor of defendants. Following denial of their motion to set aside the verdict as against the weight of the evidence, plaintiffs appeal.

Plaintiffs' initial assertion of error concerns Supreme Court's charge to the jury. Essentially, plaintiffs contend that the court erred in instructing the jury on the burden of proof, erred in charging the emergency doctrine and contributory negligence, and erred in failing to charge an assertedly controlling section of the Vehicle and Traffic Law. With the exception of the contributory negligence charge, plaintiffs failed to object to the inclusion or omission of the other items. Such failure operates to preclude appellate review of these issues (see, CPLR 4110-b; see also, Healy v. Greco, 174 A.D.2d 877, 571 N.Y.S.2d 164; Columbia v. Horowitz, 162 A.D.2d 579, 580, 556 N.Y.S.2d 766). While portions of the charge could have been clearer in certain respects, in our view these deficiencies do not rise to the level of fundamental error so as to warrant intervention in the interest of justice (see, Columbia v. Horowitz, supra ). In this regard, we note specifically that defendants' proffer of an exculpatory explanation for the accident, i.e., that an emergency situation was...