Jamison v. Walker

• Decision Date: 16 June 1975
• Citation: 48 A.D.2d 320,369 N.Y.S.2d 469
• Parties: Ruth M. JAMISON, as administratrix, etc., Appellant, v. John WALKER et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 469

369 N.Y.S.2d 469

48 A.D.2d 320

Ruth M. JAMISON, as administratrix, etc., Appellant, v. John WALKER et al., Respondents.

Supreme Court, Appellate Division, Second Department.

June 16, 1975.

Leonard E. Friedman, New York City (Bernard Meyerson, Brooklyn, of counsel), for appellant.

Mele & Cullen, Brooklyn (Joseph D. Ahearn, New York City, of counsel), for respondent Farmingdale Garage, Inc.

Before HOPKINS, Acting P.J., and MARTUSCELLO, LATHAM, COHALAN and BRENNAN, JJ.

HOPKINS, Acting Presiding Judge.

This appeal in a wrongful death action entails two separate but related issues--whether the plaintiff established a prima facie case on the jury trial of the issues of negligence and contributory negligence and whether defendant Farmingdale Garage, Inc. was estopped from disclaiming liability resulting from the use of its dealer's registration plates on the automobile which struck the decedent represented by the plaintiff.

The Trial Term held that the plaintiff had failed to make out a case for the consideration of the jury, and dismissed the complaint at the close of the plaintiff's case; and the Trial Term also found on the second issue, after a nonjury trial that Farmingdale was not estopped from denying liability based on the use of its plates (Jamison v. Walker, 69 Misc.2d 938, 330 N.Y.S.2d 733). We reverse. We hold that there should be a new trial, since the plaintiff was entitled to go to the jury on the issues of negligence and contributory negligence, and that as a matter of law Farmingdale was estopped from contesting its liability under the applicable statute (Vehicle and Traffic Law, §§ 388, 416).

We treat first the issue whether the plaintiff made out a prima facie case on the issues of negligence and contributory negligence. As the action is for wrongful death, we must view the evidence in the light of the rules that the plaintiff is not bound to the same standard of proof required for an injured party who may himself testify (Noseworthy v. City of New York,298 N.Y. 76, 80, 80 N.E.2d 744, 745) and that the burden of proof of contributory negligence rests on the defendants (EPTL 11--3.2); moreover, as the complaint was dismissed by the trial court we must consider the evidence in the aspect most favorable to the plaintiff (Meiselman v. Crown Heights Hosp.,285 N.Y. 389, 392, 34 N.E.2d 367, 368).

The proof established that the decedent was found at about 10:30 P.M. on August 12, 1964 lying in the street by police officers, who testified that they had conducted an investigation disclosing that a DeSoto automobile bearing dealer's plates and operated by John W. Cunningham had struck the decedent. Cunningham had told the officers that he was proceeding west on Atlantic Avenue near its intersection with Hopkinson Avenue when he attempted to pass another car also westbound; and that, in pulling out of his lane, he saw the decedent too late to avoid him and struck him. The Trial Term ruled that these statements were not binding on defendant Farmingdale. Cunningham's automobile had dents on the left front fender, the headlight and the top rear of its roof. In addition, one of the officers testified that skid marks were found on the roadway, measuring 60 feet for the left front wheel and 58 feet for the right front wheel.

This proof, we think, was sufficient to make out a prima facie case. That Cunningham was operating his automobile at excessive speed at a busy intersection was inferable from the length of the skid marks on the pavement, and the dents on the automobile, indicating that the decedent was hit with such force that his body was propelled into the air, striking the roof of the automobile. Moreover, though Cunningham's statements to the police could not be receivable against Farmingdale as admissions (Van Campen v. Cram, 30 A.D.2d 541, 291 N.Y.S.2d 22; Kelly v. United Dressed Beef Co. of New York, 249 App.Div. 586, 293 N.Y.S. 446), even under the theory of a community of liability (cf. Richardson on Evidence (10th ed.), §§ 245, 243), nevertheless, the statements could have been admitted into evidence against Farmingdale as declarations against interest. This is so because there was testimony that Cunningham could not be located at the time of the trial.

Declarations against interest are admissible against a party whenever the declarant is unavailable at the trial on account of death or absence from the jurisdiction (5 Wigmore on Evidence (Chadbourn rev. 1974), § 1456, p. 327; cf. Alexander Grant's Sons v. Phoenix Assur. Co. of N.Y., 25 A.D.2d 93, 267 N.Y.S.2d 220). Absence from the state should be equated with inability to locate the declarant with due diligence within the state (cf. Johnson v. Sleizer, 268 Minn. 421, 129 N.E.2d 761; Syracuse Eng. Co. v. Haight, 2 Cir., 97 F.2d 573, 575; Gichner v. Antonio Troiano Tile & Marble Co., 133 U.S.App.D.C. 250, 410 F.2d 238). Clearly, the statements made by Cunningham were against his pecuniary interest--marking the 'circumstantial probability of trustworthiness' of the evidence, as Wigmore puts it (5 Wigmore on Evidence (Chadbourn rev. 1974), § 1455, p. 324). Unlike admissions, declarations against interest may be introduced, despite the lack of primary or community of liability between Cunningham and Farmingdale (Richardson on Evidence (10th ed.), § 255).

Thus, the plaintiff established facts from which both negligence and causation may be reasonably inferred (Wragge v. Lizza Asphalt Constr. Co., 17 N.Y.2d 313, 320, 270 N.Y.S.2d 616, 621, 217 N.E.2d 666, 670; see, also, Eder v. Cashin, 281 App.Div. 456, 120 N.Y.S.2d 165; Snell v. Motor Vehicle Acc. Ind. Corp., 34 A.D.2d 872, 310 N.E.2d 828); and any issue of contributory negligence was also a matter of determination by the jury (Anderson v. Bee Line, 1 N.Y.2d 169, 171, 151 N.Y.S.2d 633, 134 N.E.2d 457).

We come, then, to the question of Farmingdale's liability as the owner of the plates with which Cunningham's automobile was equipped at the time of the accident. Farmingdale would, of course, be liable for Cunningham's negligence if it were the owner of the automobile driven with its...