Kinsfather v. Grueneberg
| Decision Date | 20 March 1975 |
| Citation | 47 A.D.2d 789,365 N.Y.S.2d 903 |
| Parties | Virginia KINSFATHER, Respondent-Appellant, v. Joseph W. GRUENEBERG et al., Appellants-Respondents, and Roger Craig, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Chernin & Gold, Binghamton (Israel Margolis, Binghamton, of counsel), for Grueneberg.
Kramer, Wales & McAvoy, Binghamton (Philip J. Kramer, Binghamton, of counsel), for Ida Warner.
Farone & Devine, Oneonta (Philip J. Devine, Oneonta, of counsel), for Kinsfather.
Levene, Gouldin & Thompson, Binghamton (Paul B. Price, Binghamton, of counsel), for Roger Craig.
Before HERLIHY, P.J., and GREENBLOTT, KANE, MAIN and LARKIN, JJ.
Cross-appeals from a judgment of the Supreme Court, entered June 17, 1974 in Otsego County, upon a jury verdict rendered at a Trial Term.
This tragic accident in which the plaintiff Kinsfather was seriously injured and another was killed took place in the Town of Islip at the intersection of Johnson Avenue and Sunrise Highway at about 1:00 P.M. on April 15, 1972. Sunrise Highway runs generally east and west and at this point consists of two through lanes and turning lanes for northbound and southbound exiting traffic to Johnson Avenue. A grassy mall, 15 to 20 feet in width, separates eastbound and westbound traffic on Sunrise Highway. The intersection is controlled by traffic lights, but there are no arrows separately controlling left or right turns.
The defendant Grueneberg was proceeding westerly on Sunrise Highway in the southerly lane of the through lanes and Craig, traveling in the same direction, had pulled to his left into the lane provided for traffic intending to exit on Johnson Avenue to proceed southerly. Craig stopped at the edge of Johnson Avenue while a yellow station wagon moving northward passed by. Behind the station wagon came the Warner vehicle, with plaintiff and another as passengers. Mrs. Warner stopped southerly of Craig in the northbound lane of Johnson Avenue and she and Craig apparently engaged in a 'staring' contest until Craig pulled ahead and around the Warner car and headed south. Mrs. Warner then proceeded directly ahead in a northerly direction and was struck by the Grueneberg car. According to the testimony, during all of this time the light was green for Sunrise Highway traffic and red for motorists on Johnson Avenue. The pavement was wet in spots from a previous rain and the speed limit for the area was 55 miles per hour. Neither the plaintiff Kinsfather, because of her disabling injuries, nor Mrs. Warner, an apparent amnesia victim, testified at trial. The jury found no cause for action in plaintiff's suit against Craig, but awarded her $75,000 in damages against Grueneberg and Mrs. Warner and apportioned the liability between them at 77% For Warner and 23% For Grueneberg.
The plaintiff and the defendants Grueneberg and Warner appeal on several grounds. All urge that the verdicts, adverse to their respective interests, were against the weight of the evidence, in that plaintiff and Warner contend that Craig was guilty of actionable negligence along with Grueneberg. The latter asserts that Warner was solely to blame and that he, Grueneberg, was free from negligence as a matter of law because there was no possible way for him to avoid the accident. As to Grueneberg's contention, we find no merit. He was proceeding at 45--50 miles per hour; knew there was a busy intersection ahead; could observe that the pavement was wet and, by his own testimony, was denied a full view of possible approaching traffic on Johnson Avenue by the presence of vehicles in the exiting lanes. Certainly the jury could have found that his operation of the vehicle failed to meet the requirements of subdivisions (a) and (e) of section 1180 of the Vehicle and Traffic Law and that this conduct was a contributing proximate cause of the accident. In seeking refuge in the emergency doctrine, as he does here on appeal, Grueneberg overlooks the fact that the doctrine is bottomed upon the idea that the situation suddenly and unexpectedly confronted must not be of his own making, nor can he have contributed to its making. It seems obvious that the jury rejected this doctrine and on the record they were justified in finding that his speed under the conditions prevailing did contribute to the making of the situation he encountered. Whether his action under the circumstances was unreasonable and a concurrent cause of the accident was a proper jury question (Livant v. Adams, 17 A.D.2d 784, 232 N.Y.S. 641).
The assertion of the plaintiff and Warner that the verdict was against the weight of the evidence also...
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