Johnson v. Hickson

CourtNew York Court of Appeals
Citation403 N.Y.S.2d 722,374 N.E.2d 616,43 N.Y.2d 906
Parties, 374 N.E.2d 616 Ruby M. JOHNSON, as Administratrix of the Estate of Irving Johnson, Deceased, Appellant, v. Cleveland A. HICKSON et al., Respondents, et al., Defendants.
Decision Date14 February 1978

The order of the Appellate Division should be affirmed, with costs.

Plaintiff's intestate was killed as the result of a 1969 motor vehicle accident on the New York State Thruway. Defendant Threatt, in whose vehicle decedent was a passenger, stopped to aid defendant Gadson whose car had a flat tire and was stopped in the extreme left-hand lane of three lanes of pavement. A third car, operated by defendant Hickson and owned by Humble Leasing Co., struck the rear of the Gadson vehicle propelling it forward and upon decedent. The car driven by Hickson rebounded into the middle lane where it came into contact with defendant Dworkin's car. At the trial of this action instituted to recover for wrongful death and conscious pain and suffering, the complaint was dismissed as against Dworkin at the close of plaintiff's case and subsequently the jury returned a verdict in favor of the remaining defendants.

On the subject of contributory negligence, the jury was charged in effect that, as to all defendants except Gadson, decedent was required to exercise the same degree of care that a reasonably prudent person would have exercised for his own safety under the same circumstances. However, as to Gadson, the jury was instructed in substance that if an emergency situation existed decedent's actions would have to be found rash and wanton in order to constitute contributory negligence.

Without determining whether an emergency situation existed here, it should be recognized that "(w)hether a plaintiff was contributorily negligent depends only on his conduct under the circumstances, including any emergency which may have confronted him, and should not depend upon whether any particular individual apart from himself created that emergency or affected his conduct" (Raimondo v. Harding, 41 A.D.2d 62, 65, 341 N.Y.S.2d 679, 681; see, also, Hart v. Scribner, 44 A.D.2d 59, 64, 353 N.Y.S.2d 230, 234; Restatement, Torts 2d, § 472, Comment b )...

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3 cases
  • Padilla v. Hooks Intern., Inc., 5493
    • United States
    • New Mexico Court of Appeals of New Mexico
    • October 19, 1982
    ...actions on a highway in aid of another driver in an emergency situation would have to be found rash and wanton. Johnson v. Hickson, 43 N.Y.2d 906, 403 N.Y.S.2d 722, 374 N.E.2d 616 Under the doctrine of comparative negligence, to find that plaintiff was negligent under the "Rescue Doctrine,"......
  • Dubacs v. State, 63180
    • United States
    • New York Supreme Court Appellate Division
    • May 27, 1988
    ...actions to prevent injury to others should be judged by what a reasonable person would do under the same exigencies ( Johnson v. Hickson, 43 N.Y.2d 906, 908, 403 N.Y.S.2d 722, 374 N.E.2d 616; Hart v. Scribner, 44 A.D.2d 59, 64, 353 N.Y.S.2d 230). Claimant will not be "held to the standard o......
  • Martin v. Alabama 84 Truck Rental, Inc.
    • United States
    • New York Court of Appeals
    • April 24, 1979
    ...that the emergency doctrine has no application where the plaintiff participated in the creation of the emergency (cf. Johnson v. Hickson, 43 N.Y.2d 906, 908, 403 N.Y.S.2d 722, 723, 374 N.E.2d 616, 617). Nor do we agree that the court erred in allowing cross-examination on the plaintiff's fa......

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