Hermance v. Slopey

• Decision Date: 21 April 1969
• Citation: 299 N.Y.S.2d 38,32 A.D.2d 573
• Parties: Donna HERMANCE et al., Appellants, v. Melvin SLOPEY et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 38

299 N.Y.S.2d 38

32 A.D.2d 573

Donna HERMANCE et al., Appellants, v. Melvin SLOPEY et al., Respondents.

Supreme Court, Appellate Division, Third Department.

April 21, 1969.

Wein & Canale, George H. Wein, Glens Falls, for appellants.

LaPann & Reardon, J. Robert LaPann, Glens Falls, for respondents.

Before GIBSON, P.J., and REYNOLDS, AULISI, STALEY and COOKE, JJ.

COOKE, Justice.

Appeal by plaintiffs from a judgment of the Supreme Court entered upon a verdict of no cause of action in a personal injury negligence action.

Donna Hermance, five years and four months of age, received severe injuries when she ran into First Street in the City of Glens Falls and came in contact with the pickup truck owned by one defendant and operated by the other. There were disputed issues of fact, such as concerning the place where the child went into the street in relation to a parked station wagon and the portion of the truck which touched her, but the rather lengthy trial did not develop substantial liability against defendants and it cannot be said that the verdict was contrary to the weight of evidence or, indeed, that a recovery by plaintiffs could have been sustained.

Appellants contend that their counsel, prior to summation, called attention to certain authorities with a request for a charge on the subject of Sui juris and Nonsui juris, neither of which is revealed in the record, but it cannot be said that the charge relating to contributory negligence on the part of the infant plaintiff was erroneous. (McDonald v. Central School Dist. No. 3, 289 N.Y. 800, 47 N.E.2d 50; Camardo v. New York State Rys., 247 N.Y. 111, 159 N.E. 879; Chandler v. Keene, 5 A.D.2d 42, 43--44, 168 N.Y.S.2d 788, 790--791), particularly absent an exception or request for clarification (CPLR 4017; see 4 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 4017.02 et seq.).

After defining negligence, the Trial Justice stated that it may arise 'from doing an act which a reasonably prudent person would not have done under the same circumstances or, on the other hand, in failing to do an act which a reasonably prudent person would have done under the same circumstances', pointing out that plaintiffs contended that the truck operator saw the children at play around a stump, yard and sidewalk in the area of the parked vehicle while 200 feet away and that in the exercise of reasonable care he should have slowed down, steered to the left and given warning of his approach, that he should have recognized the propensity of children in play 'as to the likelihood of their coming into the street', there being more of an error of omission than commission in the 'failure to take extra precautions which caused this accident.' Coupled with the lack of an exception or request to make the charge in this respect more explicit, same did not constitute reversible error (cf. Quarcini v. Blackwell, 10 N.Y.2d 843, 221 N.Y.S.2d 730, 178 N.E.2d 432; Stein v. Palisi, 308...