Johnson v. Hickson

• Decision Date: 14 February 1978
• Citation: 403 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.
• Court: New York Court of Appeals Court of Appeals

Page 722

403 N.Y.S.2d 722

43 N.Y.2d 906, 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.

Court of Appeals of New York.

Feb. 14, 1978.

Richard Gralicer, Yonkers and Carmine C. Marasco, White Plains, for appellant.

Donald A. Mead and Richard L. Magro, White Plains, for Humble Leasing Co. and Cleveland A. Hickson, respondents.

Arthur R. Calger, Hartsdale, for Jimmy Gadson, respondent.

OPINION OF THE COURT MEMORANDUM.

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 )...