Horton v. State
| Citation | 272 N.Y.S.2d 312,50 Misc.2d 1017 |
| Decision Date | 29 June 1966 |
| Docket Number | No. 45812,45812 |
| Parties | Robert L. HORTON, Individually, as Administrator of the Goods, Chattels and Credits of Frances M. Horton, Deceased, and Robert L. Horton, Claimant, v. The STATE of New York and Raymond Frederick Darby, Defendants. Claim |
| Court | New York Court of Claims |
This is a claim brought by Robert L. Horton, individually, and as Administrator of the goods, chattels and credits of Frances M. Horton, Deceased, the wife of said Robert L. Horton. Letters of Administration were issued to Robert L. Horton on November 1, 1965 and the above entitled claim was filed on November 9, 1965. On October 22, 1965, shortly after 10:00 A.M., the decedent was operating a Volvo sedan automobile in a general northerly direction on Route 11 in the Township of Lafayette, Onondaga County, New York, approximately three-fourths of a mile south of the State garage. She was alone in the automobile. Route 11 is a two lane blacktop road and the paved portion is 18 feet 3 inches wide. At this point the road is straight and level. The weather was cloudy and dry.
When at the above location, the Volvo automobile was struck by a Model 134 Trojan tractor shovel, commonly termed a payloader, owned by the State of New York, and operated by its employee, Raymond F. Darby, in a general southerly direction on Route 11. The payloader has a four wheel drive and is 18 feet long and 7 feet 9 inches in width. As the operator sits in the stationary seat facing forward, there is a 6 foot wide scoop or bucket at the front end of the vehicle. Darby had taken the payloader from the garage and was proceeding to another job some distance south of the scene of the accident. Darby was operating the payloader about five to ten miles per hour in reverse, that is, he was backing it down the highway while he was sitting in the operator's seat, looking backwards over his left shoulder through the rear view window to observe other traffic and driving conditions. He testified that he had both his hands on the steering wheel and that he could see the left rear wheel of the payloader which he used to guide his steering by keeping it along the west edge of the pavement, 'sometimes more, sometimes less'. He further testified that he saw the Volvo coming north toward him when it was 1000 or 2000 feet away. He could not say whether he looked more than once, but he never saw the Volvo again. He could not estimate the rate of speed the Volvo was travelling, but he said it was within a lawful speed limit and on its own or right hand side of the road at all times. No other testimony was received further pertaining to the operation of the automobile. He testified further there is a blind spot in front of the payloader when it is backing up and he could not see anything in front of the vehicle. Other testimony was received to show that the hood obstructs the view for at least 15 feet in front of the loader when it is operated by backing.
The operating instruction Manual put out by the manufacturer of the Trojan shovel contains the following paragraph:
Expert testimony was also offered to show that the steering mechanism operated on the rear wheels, the front wheels being immovable. In driving forward, by turning the steering wheel to the left, or counter clockwise, this did not turn the front wheels at all, but turned the rear wheels to the right, causing the vehicle to turn left. By turning the steering wheel to the right, or clockwise, the rear wheels would turn to the left, causing the vehicle to turn right. This offered no problem to the operator because he steered the same as he would any other vehicle. When the vehicle was being operated in reverse, however, the operator was required to do just the opposite because all the steering was done by turning the rear wheels. This causes an optical illusion and in an emergency could have a disturbing effect on the judgment of the operator.
Testimony was also offered to show that the rear window was dirty and cloudy and that the safety glass was fractured.
Darby also testified that on some occasions when a payloader was being backed down a highway, another state truck would precede the vehicle by driving ahead of it. On this time, however, the state truck had gone on so far ahead that it was out of his sight at the time of the crash.
There were no other eye witnesses to the accident. Darby's testimony was of little assistance to the Court. He said, 'I heard a crash and we both came to rest on the east side of the road'. Both cars were on the shoulder on the east side of the pavement after the accident. Considerable debris and broken glass were all east of the center line and on the east shoulder. A burn or skid mark started west of the center line and continued to the rear wheel of the payloader. The State Police who were the first to arrive on the scene made a report that the right rear wheel of the payloader, which would be the left front wheel when it was operated in reverse, had come off before the crash and had rolled across the highway and into the Volvo. Expert metallurgists called both by the State and by the Claimant disagreed with this theory and testified that the wheel had come off in the crash and that it did not come off before the accident.
Under all these facts, it is apparent that Darby, the operator of the payloader and the employee of the State was negligent. There is nothing in the record to show any negligence on the part of the decedent, who was killed instantly, and need not show freedom from contributory negligence:
De Sessa v. City of White Plains, 30 Misc.2d 817, 823, 219 N.Y.S.2d 190, 196. Gough v. Anson's Dairy, 11 A.D.2d 859, 202 N.Y.S.2d 847. Armieri v. Mertens, 245 App.Div. 906, 282 N.Y.S. 714.
The vehicle and Traffic Law provides as follows:
The driver of a vehicle shall not back the same unless such movement can be made with safety and without interfering with the other traffic. § 1211(a).
Upon all roadways any vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions then existing shall be driven in the right-hand lane then available for traffic, or as close as practicable to the right-hand curb or edge of the roadway, except when overtaking and passing another vehicle proceeding in the same direction or when preparing for a left turn at an intersection or into a private road or driveway. § 1120(b).
Drivers of vehicles proceeding in opposite directions shall pass each other to the right and upon roadways having width for not more than one line of traffic in each direction each driver shall give to the other at least one-half of the main-travelled portion of the roadway as nearly as possible. § 1121.
Every motor vehicle, when driven or operated upon a public highway, shall be equipped with a mirror or other reflecting device so adjusted that the operator of such vehicle shall have a clear and full view of the road and condition of traffic behind such vehicle. § 375, par. 10.
Having decided that the Claimant is entitled to recover damages from the State of New York, we now come to the question of how much this award shall be.
The Decedent Estate Law §§ 130--132 provides that damages may be such sum as is deemed to be a fair and just compensation for the pecuniary injuries, resulting from the decedent's death, to the person or persons for whose benefit the action is brought.
The statute provides that recovery is limited to what the jury or the Court as the trier of the facts shall be guided by his own good sense, experience and discretion in estimating what these damages shall be. Liddie v. State of New York, 190 Misc. 347, 75 N.Y.S.2d 182, Oddo v. Paterson Bridge Co., 219 App.Div. 518, 220 N.Y.S. 217.
Each case clearly depends upon its own peculiar state of facts. Liubowsky v. State of New York, 260 App.Div. 416, 23 N.Y.S.2d 633, affd 285 N.Y. 701, 34 N.E.2d 385. Sutherland v. State of New York, 189 Misc. 953, 68 N.Y.S.2d 553.
The amount of the damages depends upon the value of the reasonable expectation of pecuniary benefits from the continuance in life by the decedent to the husband and next of kin. Dimitroff v. State of New York, 171 Misc. 635, 13 N.Y.S.2d 458. Gaccione v. State of New York, 173 Misc. 367, 18 N.Y.S.2d 161.
It has been indicated that the word 'pecuniary' is not used in the statute to the immediate loss of money or property. If that were so there is scarcely a case where any amount of damages could be recovered. It looks to prospective advantages of a pecuniary nature which have been cut off by a premature death of the person from whom they would have proceeded. Tilley v. Hudson River R.R. Co., 24 N.Y. 471.
Courts have held that there is no mathematical formula upon which an award of damages for wrongful death may be based, specifically rejecting:
1. Sentiment, grief, loss of society and suffering of survivors.
Arnold v. State of New York, 163 App.Div. 253, 148 N.Y.S. 479 Costello v. Buffalo General...
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