Gary v. Schwartz

• Decision Date: 08 December 1972
• Citation: 339 N.Y.S.2d 39,72 Misc.2d 332
• Parties: Barbara GARY, Administratrix De Bonis Non of the Goods, Chattels and Credits of Robert Gary, Deceased, Plaintiff, v. Ethel SCHWARTZ and David M. Schwartz, Defendants.
• Court: New York Supreme Court

Page 39

339 N.Y.S.2d 39

72 Misc.2d 332

Barbara GARY, Administratrix De Bonis Non of the Goods Chattels and Credits of Robert Gary, Deceased, Plaintiff, v. Ethel SCHWARTZ and David M. Schwartz, Defendants.

Supreme Court, Trial Term, Nassau County, Part XVII.

Dec. 8, 1972.

Fuchsberg & Fuchsberg, New York City, for plaintiff.

Montfort, Healy, McGuire & Salley, Garden City, for defendants.

MEMORANDUM

DANIEL G. ALBERT, Justice.

This is a wrongful death action brought by a mother, Barbara Gary, on behalf of her sixteen-year-old son, Robert, who suffered fatal injuries on the evening of October 27, 1969 when the bicycle on which he was riding was struck by the motor vehicle being driven by the defendant's twenty-year-old son, David Schwartz. After a four day trial the jury returned a verdict for the plaintiff in the amount of $100,510.40, comprised of special damages of $2,510.40 and general damages of $98,000.00.

The following morning both counsel appeared in the Court's chambers and defendant's attorney presented his post-trial motion to set aside the verdict pursuant to Article 44 of the CPLR on the grounds that the verdict was contrary to the weight of the evidence insofar as liability was concerned and that it was excessive insofar as the amount of damages was concerned. The motion is denied in all respects.

Regarding liability, the jury's verdict is clearly Not against the weight of the evidence. On the contrary, it is entirely supported thereby. Decisional and textural authorities agree that'jury verdicts should not be set aside merely because the trial judge would have decided differently, but only in cases where the verdict seems palpably wrong and it can be plainly seen that the preponderance is so great that the jury could not have reached their conclusion upon 'any fair interpretation of the evidence.'' 4 Weinstein-Korn-Miller, N.Y.Civ. Prac. Para. 4404.09; Marton v. McCasland, 16 A.D.2d 781, 782, 228 N.Y.S.2d 756, 757 (1st Dept. 1962); Weeks v. Beardsley, 33 A.D.2d 607, 304 N.Y.S.2d 568 (3d Dept. 1969). In this case the trial judge would Not have decided the issue of liability differently, and the jury was presented with factual questions which could fairly have been and in fact were resolved in plaintiff's favor. The jury's conclusion can in no way be termed 'palpably wrong,' and it is supported by a fair interpretation of the evidence, which I shall now summarize.

It was established that on the evening in question, October 27, 1969 at 7:30 P.M., night had fallen. It was dark, the street lights were on, the intersection where the accident occurred was well lighted, visibility was good and defendant's headlights were on. (While the sole defendant is actually the owner of the vehicle and mother of the operator thereof, the term defendant shall be used for convenience to refer to the driver, since the owner's liability is based upon the conduct of the operator.) The decedent, Robert Gary, two months short of his 17th birthday, had been working on a term paper at his home which was located two houses in on Third Street just south of Waukena Avenue in Oceanside, Nassau County, the intersection where the fatal accident occurred. A senior in the local public high school, Robert left his house to go approximately three blocks to a candy store in order to purchase a stamp so that he could mail a college application that evening, and he rode his fourteen-year-old brother's bright orange small-wheeled bike which had a reflector and was covered with iridescent stickers, but which bore no light. As he returned home in a southerly direction along Third Street at about 7:30 P.M. and crossed Waukena Avenue, less than 50 yards from his house, his bike was struck by the motor vehicle driven westbound by the defendant. The decedent's mother, in the bathroom of her home, heard a crash which 'shook the house,' and when she rushed out along with her neighbors to discover what had happened she found her son lying on the northerly side of Waukena Avenue about three-fourths of the way down to Fourth Street.

The defendant testified that he did not see the decedent on his bicycle until he was past the curb line on Third Street, already out on Waukena Avenue. Upon seeing the bike, the defendant, who was allegedly traveling within the speed limit of 30 m.p.h., swerved to his left, hit his brakes as hard as he could and admittedly spun out of control. His vehicle then traveled some 150 feet, crossed Waukena Avenue, spun around so that it was now facing eastbound, and jumped the southerly curb, drove up onto the front lawn of the second house west of the intersection, knocked down a large 15-foot pine tree with a trunk diameter of seven inches and came to rest close to the house itself. The path of the uncontrolled auto was accurately traced by its tire marks on both the road and the laws and by the destruction left in its wake, attested to by photographs and eye-witness testimony. The force of defendant's braking and swerving caused his sister, riding in the front seat as a passenger, to hit her head on the windshield, which was cracked when the car was finally halted.

In charging the jury, I briefly summarized the respective contentions of the parties as follows:

'The plaintiff claims that David Schwartz was speeding and driving recklessly, that he failed to see the decedent on his bike, that he failed to exercise due care in approaching the intersection of Waukena Avenue and Third Street in Oceanside, Nassau County, where the accident occurred, and that defendant's negligence caused the fatal injuries suffered by the decedent, Robert Gary.

'Defendant Ethel Schwartz, on the other hand, contends that David Schwartz was not negligent so as to cause the accident complained of, that he was driving 30 miles per hour within the speed limit, and that the decedent himself was guilty of contributory negligence, which contributed to the happening of the accident in question, by riding his bike out onto Waukena Avenue without coming to a full stop as required by the stop sign on the right corner of Third Street.'

In addition, I quoted to the jury the pertinent portions of various provisions of the New York Vehicle & Traffic Law, Viz., section 1180(a) and (d) (speed restrictions); section 1231 (applicability of the Vehicle & Traffic Law provisions to persons on bicycles); section 1236(a) (lamp requirement for bicycles after dark); and sections 1172(a) and 1142(a) (stop sign requirements). No objections or exceptions were interposed by either party to this or any other portion of the Court's charge.

While the plaintiff was not entitled to judgment as a matter of law, it was clearly within the province of the jury to conclude from the evidence presented that the defendant was negligent in the operation of his motor vehicle because he was speeding or driving recklessly or carelessly and failed to observe the decedent in sufficient time to avoid the accident, and similarly it could reasonably have concluded that the decedent used that measure of due care to be expected from a 16-year-old lad and that he did not fail to stop for the stop sign on Third Street at the corner of Waukena Avenue. In fact, there was no evidence whatever to show that the decedent has not stopped for the stop sign, and there was ample physical evidence that the defendant had been driving far in excess of the authorized speed (30 m.p.h.).

Under these circumstances, this Court will not and indeed should not interfere with plaintiff's right to a jury verdict which, in my opinion, was eminently fair and proper in this case insofar as liability is concerned. See Serrano v. Corcoran Plate Glass Co., 40 A.D.2d 53, 337 N.Y.S.2d 385 (1st Dept.); Braun v. Consolidated Edison Co., 31 A.D.2d 165, 171--172, 296 N.Y.S.2d 61, 67--68 (1st Dept. 1968), affd. 26 N.Y.2d 825, 309 N.Y.S.2d 356, 257 N.E.2d 901 (1970); Carino v. Marino, 28 A.D.2d 514, 279 N.Y.S.2d 562 (1st Dept. 1967); Smith v. McIntyre, 20 A.D.2d 711, 247 N.Y.S.2d 361 (2d Dept. 1964).

Turning now to the second and far more troublesome branch of defendant's motion, I.e., to set the verdict for $100,510.40 aside as excessive, I am confronted with a state of the law which would appear to impose a simple accounting formula for ascertaining the pecuniary loss to a parent whose child has been wrongfully killed: probable wages of the child less cost of upkeep until the infant would have reached twenty-one years, a formula which 'would almost always result in a minus figure.' Hoyt v. United States, 286 F.2d 356, 361 (5th Cir. 1961). A perfunctory application of such a formula results in the irresistible conclusion that the verdict in this case is excessive in its entirety, and such a conclusion causes me to pause and reflect upon the circumstances of this case and the redress which should be available to a person such as the plaintiff herein, a widowed mother whose older son was tragically killed as a result of the defendant's negligence.

The decedent Robert Gary was not a 16-month old baby whose character, personality, intellect and potential would be undefined and incalculable. On the contrary, he was a 16-year-old student, a highly intelligent, industrious and talented individual, a senior in high school headed for pre-medical college and a dental career thereafter. He was short in height, his health was excellent, he participated in wrestling activities in school and loved all sports. According to the testimony adduced at the trial, he had passed his Driver Education course in high school and, had he lived, would have received his driver's license but two months after the fatal bicycle accident. He was a quiet, conservative lad who neither drank nor smoked, who dressed neatly, obeyed his parents, went to summer school to obtain better grades (although he had never failed any of his courses) and who did odd jobs in local shops and neighbors' homes since he was 13 years old in order to raise pin money...