Jarvis v. Lafarge North America, Inc., CA 07-01206.

• Decision Date: 06 June 2008
• Docket Number: CA 07-01206.
• Citation: 2008 NY Slip Op 05117,859 N.Y.S.2d 788,52 A.D.3d 1179
• Parties: CHRISTOPHER F. JARVIS, Appellant, v. LAFARGE NORTH AMERICA, INC., et al., Respondents. (Appeal No. 4.)
• Court: New York Supreme Court — Appellate Division

52 A.D.3d 1179

859 N.Y.S.2d 788

2008 NY Slip Op 05117

CHRISTOPHER F. JARVIS, Appellant, v. LAFARGE NORTH AMERICA, INC., et al., Respondents. (Appeal No. 4.)

CA 07-01206.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

Decided June 6, 2008.

Appeal from an amended judgment of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered May 21, 2007 in a personal injury action. The amended judgment, among other things, dismissed the complaint upon a jury verdict.

It is hereby ordered that the amended judgment so appealed from is unanimously affirmed without costs.

Memorandum:

Plaintiff commenced this action seeking damages for injuries he sustained when he fell from his motorcycle and slid across the pavement into a cement mixer operated by Gary W. Schildhauer (defendant). Prior to the accident, plaintiff was traveling in the southbound lane of a two-lane road, which was divided by a broken yellow line. Plaintiff had come to a complete stop behind a tractor-trailer that was attempting to make a right turn into the driveway of a facility operated by defendant LaFarge North America, Inc. (LaFarge). Defendant was stopped at the end of that driveway and, when the driver of the tractor-trailer waved defendant out of LaFarge's driveway, defendant slowly proceeded across the southbound lane and stopped at the center line. Plaintiff was aware that defendant was exiting the driveway, but he believed that the driver of the tractor-trailer had waved him, rather than defendant, forward, and he thus attempted to pass the tractor-trailer by driving in the northbound lane, whereupon the accident occurred. Plaintiff was unable to recall the details of the accident. The jury returned a verdict finding that defendant was not negligent, and Supreme Court denied plaintiff's post-trial motion to set aside the verdict based on defendant's violation of Vehicle and Traffic Law §§ 1143 and 1173 and for judgment as a matter of law or, alternatively, for a new trial on the ground that the verdict was against the weight of the evidence. We affirm.

We reject the contention of plaintiff that he was entitled to judgment as a matter of law, i.e., it cannot be said that there was "`simply no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial'" (Bradley v Earl B. Feiden, Inc., 8 NY3d 265, 273 [2007], quoting Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). Addressing first Vehicle and Traffic Law § 1173, we note that it was undisputed that defendant stopped the cement mixer "at the point nearest the roadway to be entered where the driver ha[d] a view of approaching traffic thereon" (id.), and thus plaintiff was not entitled to judgment as a matter of law with respect to defendant's alleged violation of that section of the Vehicle and Traffic Law. Pursuant to section 1143 of the Vehicle and Traffic Law, "[t]he driver of a vehicle about to enter or cross a roadway ... shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed," and we thus conclude that there was a valid line of reasoning and permissible inferences from which the jury could have determined that plaintiff was no longer "approaching on the roadway" because he had stopped behind the tractor-trailer, or that plaintiff had yielded the right-of-way to defendant (see generally Bruni v City of New York, 2 NY3d 319, 328 [2004]; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 312 [1980], rearg denied 52 NY2d 784 [1980]). We further conclude that the court properly denied plaintiff's alternative request for a new trial. Affording the requisite deference to the jury's verdict, and in light of the evidence presented at trial, we cannot agree with plaintiff that the verdict is against the weight of the evidence (see generally Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]; Williams v Pelican Pest Control, Inc., 11 AD3d 454 [2004], lv denied 4 NY3d 707 [2005]).

Contrary to the further contention of plaintiff, the court did not err in refusing to give a curative instruction concerning his use of a helmet. It was undisputed that plaintiff was wearing a helmet at the time of the accident. In any event, any issue concerning the use of a helmet was relevant only with respect to the issue of damages, and the jury never reached that issue. Also contrary to the contention of plaintiff, the court did not err in admitting evidence of his conduct on the motorcycle immediately before the accident, inasmuch as such evidence was relevant with respect to the issue of negligence (see generally ...