Jarrett v. Madifari

• Decision Date: 19 April 1979
• Citation: 67 A.D.2d 396,415 N.Y.S.2d 644
• Parties: Richard JARRETT and Lucille Jarrett, Plaintiffs-Appellants, v. Vincent MADIFARI, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 644

415 N.Y.S.2d 644

67 A.D.2d 396

Richard JARRETT and Lucille Jarrett, Plaintiffs-Appellants, v. Vincent MADIFARI, Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

April 19, 1979.

Herbert M. Horowitz, New York City, of counsel (David Jaroslawicz and Gustav G. Rosenberg, New York City, with him on the brief, Lawrence M. Rosenberg and Herbert M. Horowitz, New York City, attorneys), for plaintiffs-appellants.

Leo Eckman, New York City, of counsel (Greengold & Eckman, New York City, attorneys), for defendant-respondent.

Before BIRNS, J. P., and FEIN, SULLIVAN, LUPIANO and LYNCH, JJ.

LUPIANO, Justice.

After a non-jury trial in this negligence action, judgment was awarded the defendant dismissing the complaint. Plaintiff, Richard Jarrett, was a passenger in a vehicle driven by Kenneth Dell. Mrs. Dell and her son were fellow passengers. At approximately 11:00 A.M., on September 4, 1972, while traveling south on the New York State Thruway, the Dell vehicle had a flat. Mr. Dell drove the vehicle onto the left divider, whereupon Mrs. Dell and said plaintiff exited and crossed the three southbound lanes of the Thruway to the west shoulder in order to locate and borrow, if possible, a jack, as the jack in the Dell vehicle was not serviceable. After borrowing a jack from an individual at the golf course located in that area, the couple returned. Mrs. Dell preceded the plaintiff Richard Jarrett to the disabled vehicle. Plaintiff following, carried the large part of the jack on his left shoulder and the base in his right hand. It was a clear day. Plaintiff Richard Jarrett testified (in some detail at the examination before trial and in reduced detail at trial) that before he started to cross the three southbound lanes of the Thruway in order to reach the Dell vehicle, he looked to his left to see if there was any southbound traffic and observed two vehicles approximately five hundred yards (1,500 ft.) away (traveling southbound). ¹

¹ Plaintiff started across, and reiterated that the last thing he remembered prior to the accident was looking "to the left." The next thing he recalled was a doctor talking to him at a hospital approximately three months later. Mr. Dell testified that from his vantage point he observed the southbound traffic at the time and saw three vehicles approximately 1,000 ft. away. He saw two of the vehicles slow down, but the defendant's car in the left lane the one nearest the divider upon which the Dell vehicle was parked never slowed down. Defendant's car passed the decelerating vehicles, swerved to the right, with the consequence that a portion of said vehicle was in the center lane the point to which the plaintiff had progressed in an endeavor to reach the Dell car. Mr. Dell did not see the actual impact, but heard the crash and then saw plaintiff fall to the ground.

Defendant's vehicle, while being operated at the time by defendant, contained as passenger, defendant's wife. Defendant called no witnesses at trial and relied on reading portions of his deposition to round out those parts of said deposition which had been read to the court by plaintiff.

Defendant's testimony, as gleaned from his deposition, was that he was proceeding in the left lane (the speed lane) at about forty-five to fifty miles per hour and was able to see approximately 500 ft. in front. ² He saw no one on the Thruway until he came in proximity to the parked Dell vehicle, when he observed Mr. Dell, sitting in front of the parked car on the rail in the center divider. Defendant described the traffic as heavy and admitted there were vehicles in both lanes to the right of him. He did not observe anyone crossing the highway before the accident. Only 100 ft. after seeing Mr. Dell, defendant felt an impact. ³ The impact was described as occurring when the jack hit defendant's windshield. Defendant stated:

"While I was driving south and I had my eyes straight ahead, there was a car parked to the left of me, I moved slightly over to the right, there was a car in front of me in the right lane and there was a car in the right lane behind me" (Emphasis supplied).

He declared that he did not see anyone carrying a jack prior to the impact and did not slow down from his avowed fifty mile an hour pace until after the impact.

Plaintiffs introduced into evidence a certified copy of defendant's MV 104 report which states in pertinent part:

"Driving southbound on N.Y. State Thruway in passing left lane man with jack in hand running into Thruway from right hand lane hits the right hand side of windshield with jack."

The severe injuries sustained by plaintiff Richard Jarrett include brain damage, amnesia, loss of the use of the left arm and an inability to resume work because of the memory impairment.

In awarding defendant judgment, the trial court found that plaintiffs had failed to prove negligence on the part of the defendant and plaintiff Richard Jarrett's own freedom from contributory negligence. It observed that

"(i)t is impossible to determine from the record Precisely how the accident happened or who was at fault. . . . At best, the evidence is evenly balanced" (Emphasis supplied).

We do not agree with the trial court's view of the record.

On this record it is patent that plaintiffs made out a Prima facie case. In reaching this conclusion, we employ reason and common sense, sure guides in the ascertainment of truth and the dispensation of justice. Parenthetically, any advantage otherwise afforded the trier of the facts in actually observing the witnesses and parties testify an advantage not given an appellate court by the lifeless printed pages of a record is diluted to a considerable extent in this matter, because the defendant called no witnesses and relied on simply reading portions of his deposition. Regarding freedom from contributory negligence, plaintiff Richard Jarrett stated that he looked before traversing the Thruway to see if it was safe to cross and determined to do so, the closest vehicle being 500 yards away. The reason attributed by plaintiff to the precautionary act engaged in was simply: "I wouldn't go into cars; I wasn't ready to die." ⁴

It is unequivocally demonstrated on this record that the defendant's vehicle did not slow down before the impact, despite the fact that defendant had observed the Dell vehicle protruding onto the Thruway and the fact that two of the vehicles to defendant's right had slowed down. A reasonable man would be put on notice that something was wrong and would have employed similar cautionary tactics. Instead, the evidence points merely to a veering by the defendant to the right to avoid the Dell automobile, which swerve into part of the middle lane resulted in defendant's vehicle striking plaintiff.

The problem lies in the defendant's versions of the incident that embodied in the MV 104 and that given at the examination before trial and submitted to the trial court which versions raise a clash of probabilities. If credence is given the defendant's MV 104, then it appears that defendant had, in fact, seen plaintiff before the impact. While the words delineated in the MV 104 do not specifically state that defendant saw the plaintiff Richard Jarrett before the impact the clear connotation is that defendant did see him before the impact. Yet defendant's testimony at the examination before trial differs. To reiterate, in his deposition, defendant declares that he was traveling at forty-five to fifty miles per hour, in heavy traffic, on the Thruway in the left lane (the so-called "speed lane"), that he was operating under the apprehension that the legal speed limit was sixty miles per hour, and that he was looking straight ahead. Again, common sense probabilities arise. Looking straight ahead, defendant supports his assertion in this context that he did not see the plaintiff. Aside from the clash of the two versions in this respect, defendant's overtaking of the vehicles to his right and his admission of not slowing down until after the impact, raises the spectre either that he was traveling in such manner as to overtake those other vehicles, or that those vehicles were slowing down. Again, if the vehicles were slowing down, then this circumstance, coupled with the position of the Dell vehicle, would put an alert driver on notice that something was wrong. Of course, if defendant was fixed in his concentration as to matters occurring straight ahead, then awareness or appreciation of events not occurring within the immediate field of attention would be lessened. "In this nonjury case, it is within the province of this court to grant the judgment which, upon the evidence should have been granted by the trial court. . . . We are not required to give credence to testimony so inherently improbable that we are morally certain it is not true" (DeMayo v. Yates Realty Corp., 35 A.D.2d 700, 701, 314 N.Y.S.2d 918, 920, 921 (1st Dept. 1970)).

Common sense dictates that the plaintiffs' case is more credible, since virtually only one bent on suicide would attempt to cross the Thruway, in heavy traffic, with cars immediately on top of him. The natural inferences that can be drawn from the record are that the plaintiff attempted to cross during a break in traffic, and that though two vehicles slowed down because they observed the plaintiff crossing, the defendant nonetheless passed the slowing vehicles, swerved to the right to avoid the protruding Dell vehicle and saw the plaintiff at the last moment, striking him while in the center lane.

A plaintiff found to be an amnesiac, having made a showing of negligence and freedom from contributory negligence, however slight a showing of facts from which negligence may be inferred is entitled to application of the rule providing when a plaintiff may prevail on a lesser degree of proof (Schechter v. Klanfer, 28 N.Y.2d 228, 233, 321 N.Y.S.2d 99, 103, 269 N.E.2d 812, 815 (1971); See, Wank v. Ambrosino, 307 N.Y. 321, 121...