France v. Shannon
Decision Date | 10 February 1971 |
Citation | 318 N.Y.S.2d 189,36 A.D.2d 651 |
Parties | Kendrick Gary FRANCE, Respondent, v. John D. SHANNON, as Administrator of the Estate of Thomas E. Shannon et al., Defendants, and Christian X. Kouray, as Surviving Administrator of the Estate of Louis Angelo, Appellant. (And 1 Other Action.) |
Court | New York Supreme Court — Appellate Division |
Gordon, Gordon & Siegel, Schenectady (Arnold M. Gordon, Schenectady, of counsel), for respondent Kendrick Gary France.
Richard G. Della Ratta, Schenectady, for respondent Mary Ann France in Action No. 2.
James T. Viger, Troy (Donald Orseck by Sidney Orseck, Liberty, of counsel), for appellant.
Before HERLIHY, P.J., and REYNOLDS, GREENBLOTT and COOKE, JJ.
Appeals from judgments of the Supreme Court, entered June 11, 1969 and June 25, 1969 in Schenectady County upon a jury verdict in favor of plaintiffs.
The defendant Angelo was proceeding easterly on Route #7 and as demonstrated by the exhibits was in close proximity to the curb on the south side of the road. The operator of the colliding automobile (whose interest was settled) was proceeding west, veered from his side of the road across the mall onto Angelo's side of the road and collided with his automobile.
The issue which the jury was required to decide as to the defendant Angelo was whether the alleged excessive speed of his automobile was a proximate or concurring cause of the accident and on this appeal the question for this court is whether or not the verdict was against the weight of the evidence and contrary to the law.
The verdict should be set aside and the judgments reversed on the law and the facts and a new trial ordered with costs to abide the event.
Giving the plaintiffs the most favorable version of the evidence, it was established that the Angelo automobile in which they were riding was proceeding at 70 miles an hour in a 40 mile speed zone, which testimony was admitted without objection. They observed the other automobile coming around a curve, a distance of about 500 feet and traveling at 70 or more miles an hour, cross from its side of the road diagonally over the mall and into the Angelo car proceeding on its own side of the road; that from the time the automobile first came into view at the most nor more than ten seconds elapsed. All of these observations were made at 11:30 in the evening on a dark and rainy night when the roads were wet and that the collision occurred within 'split seconds', but whatever observations the plaintiffs testified to, it is undisputed that the Angelo car was at all times on its side of the road.
Issues of credibility were of the utmost importance in the jury evaluation of such evidence in this case as might possibly be relied upon to find that Angelo was negligent.
Upon the present record, if Angelo were negligent, it would be premised solely on excessive speed as testified to by the plaintiffs and, assuming that fact, it would not establish that speed was the proximate or the concurring cause of the accident (Meyer v. Whisnant, 307 N.Y. 369, 121 N.E.2d 372). Under the proof and the charge the jury was allowed to speculate as to the controlling issue of proximate and concurring causation and the verdict was against the weight of the evidence. It seems evident that Angelo had no time to react to the operation of the other automobile and that the confronting emergency created by the other automobile was in all probability th sole cause of the accident. (See Breckir v. Lewis, 21 A.D.2d 546, 251 N.Y.S.2d 77; Gooch v. Shapiro, 7 A.D.2d 307, 182 N.Y.S.2d 744, affd. 8 N.Y.2d 1088, 208 N.Y.S.2d 34, 170 N.E.2d 830.)
The circumstances here were such that the charge of the trial court should have been clear and explicit on the critical issue of causation. While it is noted that no exceptions were taken to the charge, it is the responsibility of this court in deciding the issue of the weight of evidence to determine whether under the charge the jury was sufficiently apprised of its responsibility as to that issue essential for liability. (See Green v. Downs, 27 N.Y.2d 205, 208, 316 N.Y.S.2d 221, 223, 265 N.E.2d 68, 70.)
Judgments reversed, on the law and the facts, and a new trial granted, with costs to abide the event.
COOKE, J., dissents and votes to affirm in the following memorandum.
The jury's determination in favor of plaintiff passengers should not be disturbed.
First of all, there was a considerable body of proof establishing negligence on the part of Angelo, with whom plaintiffs were riding. The uncontradicted evidence was that he was traveling about 70 miles an hour at a place where a 40 mile speed limit was in existence (cf. Conte v. Large Scale Development Corp., 10 N.Y.2d 20, 29, 217 N.Y.S.2d 25, 29, 176 N.E.2d 53, 56; Healy v. Rennert, 9 N.Y.2d 202, 211, 213 N.Y.S.2d 44, 50, 173 N.E.2d 777, 781; see Vehicle and Traffic Law § 1180, subd. (b)). There was also proof from which it could be concluded that his speed was not reasonable and prudent under the conditions and in regard to the actual and potential hazards then existing (see Vehicle and Traffic Law § 1180, subd. (a)) since it was proven that he was proceeding downgrade, upon both westbound lanes, at nighttime, while raining and slippery and as he was approaching a left hand curve, around which one could not see.
Furthermore, the record reveals facts from which it could be found that...
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