Maresca v. Lake Motors, Inc.
| Decision Date | 07 April 1969 |
| Docket Number | Nos. 1,2,s. 1 |
| Citation | 32 A.D.2d 533,299 N.Y.S.2d 727 |
| Parties | Isabella MARESCA, as Administratrix, etc., Appellant, v. LAKE MOTORS, INC., et al., Respondents. ROLAND'S TRUCKING INC. et al., Appellants, v. LAKE MOTORS, INC., et al., Respondents. Action |
| Court | New York Supreme Court — Appellate Division |
Edward J. Gunnigle, Port Jefferson, for appellants, Isabella Maresca, Roland's Trucking, Inc., Dellwood Dairy Co., Inc.; Carroll & Trapani, New York City, of counsel; Mario Matthew Cuomo, Brooklyn, on the brief.
Henry Wolfman, New York City, for defendant-respondent Suffolk Car Leasing Corp. in Actions No. 1 and 2; Lewis I. Wolf, New York City, of counsel.
Simone & Brant, White Plains, O'Brien & Kelly, Mineola, of counsel, for defendants-respondents, Lake Motors, Inc. and John E. Kuhlke, in Actions No. 1 and 2; Thomas Grimes, New York City, John D. Kelly, Mineola, of counsel.
Before CHRIST, Acting P.J., and BRENNAN, RABIN, HOPKINS and KLEINFELD, JJ.
MEMORANDUM BY THE COURT.
In a consolidated action to recover damages for the wrongful death of plaintiff Maresca's intestate and for property injuries of plaintiffs Roland's Trucking Inc. and Dellwood Dairy Co., Inc., in which it was stipulated that, in the event of a verdict in favor of plaintiff Maresca, a verdict would be entered in favor of said corporate plaintiffs in stated respective amounts, plaintiffs appeal from a judgment of the Supreme Court, Suffolk County, entered June 12, 1968, in favor of defendants upon (1) the trial court's dismissal of the Maresca complaint as against defendant Suffolk Car Leasing Corp. at the end of plaintiffs' case and (2) the trial court's decision, after a jury verdict in favor of plaintiff Maresca for $128,000 against the two other defendants, setting aside the verdict and dismissing the Maresca complaint and also the complaint of the corporate plaintiffs on said stipulation.
Judgment modified by (1) striking therefrom the first two decretal paragraphs, which are in favor of defendants Lake Motors, Inc. and John E. Kuhlke; (2) reinstating the jury verdict against said two defendants; and (3) remanding the case to the trial court for entry of an amended judgment which, Inter alia, will be against said two defendants and in favor of plaintiff Maresca upon the jury verdict and, upon said stipulation, in favor of plaintiff Roland's Trucking Inc. for $1,133.17 and in favor of plaintiff Dellwood Dairy Co., Inc. for $76.25. As so modified, judgment affirmed, with costs to plaintiff Maresca against said two defendants and a separate bill of costs jointly to said corporate plaintiffs against said two defendants.
Essentially we are concerned with a wrongful death action in which a milk truck driver was killed when his milk truck was in a collision with a car driven by defendant Kuhlke on a Suffolk County highway. The time was approximately 6 A.M. on January 17, 1963; the road was dark, icy and slippery. The only surviving witness to the manner of the happening of the accident is Kuhlke; plaintiff Maresca's intestate was killed instantly when he was thrown from his truck and run over by it before it fell over onto its right side on a gas station apron.
The jury found defendant Kuhlke guilty of negligence, as driver of the other automobile, and likewise found against defendant Lake Motors, Inc., as the owner, based on the testimonial evidence as well as the documentary and photographic evidence. The learned Trial Justice nevertheless held that the equal inferences rule of Ingersoll v. Liberty Bank of Buffalo, 278 N.Y. 1, 14 N.E.2d 828, required a setting aside of the verdict and the dismissal of the complaint as to defendants Kuhlke and Lake Motors, based on failure to make out a Prima facie case. We disagree and hold that the jury verdict must be sustained.
Defendant Kuhlke admitted to driving at 45 to 50 miles per hour on the slippery road; he said he was in the process of passing the slowermoving milk truck which was in the right-hand lane of this two-lane westbound highway; Kuhlke alone saw a car in front of the milk truck, the rear lights of which went on at that very time, and then suddenly the truck's rear lights went on as well and the...
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