Hatch v. King

• Decision Date: 11 December 1969
• Docket Number: No. 1,1
• Citation: Hatch v. King, 307 N.Y.S.2d 515, 33 A.D.2d 879 (N.Y. App. Div. 1969)
• Parties: Frazier HATCH, Respondent, v. Charles KING, Appellant. . Action
• Court: New York Supreme Court — Appellate Division

Page 515

307 N.Y.S.2d 515

33 A.D.2d 879

Frazier HATCH, Respondent, v. Charles KING, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Action No. 1.

Dec. 11, 1969.

Rosen, Yasinow, Roberts & Rich, George R. Rich Buffalo, for appellant.

Cellino, Likoudis & Bernstein, Michael Likoudis, Buffalo, for respondent.

Before GOLDMAN, P.J., and MARSH, WITMER, MOULE and HENRY, JJ.

MEMORANDUM:

Plaintiffs have recovered judgments in these three actions against defendant King, as owner, and defendant Norman, as driver, of an automobile which struck plaintiff Roberson's vehicle, in which plaintiffs Hatch and Williams were passengers. The plaintiff's automobile was struck in the rear whie it was parked. The defendants were not present at trial and the only testimony offered by them was a portion of defendant-owner King's examination before trial bearing on the issue of permission to drive his automobile. The trial court, at the close of all the evidence, directed a verdict on the issue of liability in favor of all three plaintiffs against both defendants and submitted only the issues of permission and damage to the jury. The amounts of the verdicts are not excessive and the only issue with which we are concerned is the court's direction of verdicts on the liability issue. The sole question is whether, in a res ipsa loquitur set of facts, where the plaintiff makes out a prima facie case of negligence and defendant offers no evidence whatsoever, the jury should be given the opportunity to determine the issue of negligence. We concur with the answer to this question found in LoPiccolo v. Knight of Rest Products Corp., 7 A.D.2d 369, 183 N.Y.S.2d 301, where the court stated at page 374, 183 N.Y.S.2d at 306:

'But, even assuming that plaintiff had established a prima facie case based on Res ipsa loquitur, it would not have provided such proof of defendant's negligence which a jury, in the absence of rebuttal, was bound to accept. At best, plaintiff was relying upon proof which, it might be argued, a jury was entitled to accept in drawing an inference of negligence. It is now well settled in this state, and in most of the jurisdictions of the country, that, under such circumstances, the jury is not bound to make the inference of negligence, even if the defendant offers no countervailing proof. The rule was definitively laid down in the leading case of George Foltis, Inc. v. City of N.Y. (287 N.Y. 108, 38 N.E.2d 455, 153 A.L.R. 1122), settling considerable...