Gooch v. Shapiro, 1

• Decision Date: 24 February 1959
• Docket Number: No. 3,No. 2,No. 1,1,2,3
• Citation: 7 A.D.2d 307,182 N.Y.S.2d 744
• Parties: Howard GOOCH, Plaintiff-Respondent, v. Ronald SHAPIRO, Defendant-Appellant, and Andrew Holinko, Defendant-Appellant-Respondent. ActionJane HOLINKO and Herbert Holinko, Plaintiffs-Respondents, v. Ronald SHAPIRO, Defendant-Appellant. ActionAdam ORZUCHOWSKI, Plaintiff-Respondent, v. Ronald SHAPIRO, Defendant-Appellant. Action
• Court: New York Supreme Court — Appellate Division

Page 744

182 N.Y.S.2d 744

7 A.D.2d 307

Howard GOOCH, Plaintiff-Respondent, v. Ronald SHAPIRO, Defendant-Appellant, and Andrew Holinko Defendant-Appellant-Respondent.

Action No. 1.

Jane HOLINKO and Herbert Holinko, Plaintiffs-Respondents, v. Ronald SHAPIRO, Defendant-Appellant.

Action No. 2.

Adam ORZUCHOWSKI, Plaintiff-Respondent, v. Ronald SHAPIRO, Defendant-Appellant.

Action No. 3.

Supreme Court, Appellate Division, First Department.

Feb. 24, 1959.

William F. McNulty, New York City, of counsel (Rudser & Fitzmaurice, New York City, attys.), for defendant-appellant Shapiro in actions Nos. 1, 2 and 3.

Irving Moldauer, New York City (Daniel Cohen New York City, with him on the brief), for respondents Andrew Holinko, Jane Holinko and another.

Arthur Karger, New York City, of counsel (Irving Nitzberg, New York City, for plaintiff-respondent Howard Gooch in Action No. 1; Norman C. Harlowe, New York City, for plaintiff-respondent Adam Orzuchowski in Action No. 3).

Before BOTEIN, P. J., and FRANK, McNALLY and STEVENS, JJ.

PER CURIAM.

No facts were elicited during the trial of this case which would support a finding of negligence as against either defendant. The car of defendant Holinko was traveling slowly south on the snow-covered Hutchinson River Parkway when it suddenly skidded. The driver took his foot off the gas pedal and tapped the brake lightly, but nevertheless the car went over the concrete divider and into the northbound lane, where it was struck by defendant Shapiro's car. There was no evidence of any defective condition of Holinko's car. 'The burden was on the plaintiffs to produce evidence of negligence; it could not be inferred from the fact that the car skidded or that the accident happened, nor could it be left to guess, speculation or surmise.' Lahr v. Tirrill, 274 N.Y. 112, 117, 8 N.E.2d 298, 300.

Holinko's car crossed the four feet wide divider at a spot only a short distance in front of defendant Shapiro's oncoming car. Only a second or two elapsed before the impact, during which there was virtually no opportunity to avoid the collision (cf. Rowlands v. Parks, 2 N.Y.2d 64, 156 N.Y.S.2d 834; Meyer v. Whisnant, 307 N.Y. 369, 121 N.E.2d 372). The reasonableness of Shapiro's speed depended upon the duty to be perceived and the danger to be apprehended. Even on a snow covered road, the speed at which he was traveling, well below the prescribed limits, could not be said to be unreasonable. There was a margin of more than 300 feet between him and the nearest car ahead. It was not his duty to anticipate the remote contingency that a car on the other side of the road would hurtle across the divider and suddenly appear directly in his path. This was truly an unavoidable accident as to which there is no basis for imputing fault to either defendant. The judgment, insofar as it is in favor of plaintiffs against the defendants should be reversed, on the...