McAllister v. Adam Packing Corp.

Decision Date28 December 1978
Citation66 A.D.2d 975,412 N.Y.S.2d 50
PartiesPatricia A. McALLISTER, Respondent, v. ADAM PACKING CORP. et al., Appellants.
CourtNew York Supreme Court — Appellate Division

John S. McBride, Monticello (Michael Davidoff, Monticello, of counsel), for appellants.

Appelbaum & Eisenberg, Liberty (Bertram W. Eisenberg, Liberty, of counsel), for respondent.

Before MAHONEY, P. J., and SWEENEY, KANE, LARKIN and HERLIHY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court, entered May 24, 1977 in Sullivan County, upon a verdict rendered at a Trial Term in favor of the plaintiff.

On February 6, 1976, the plaintiff, while driving on Route 52 in Sullivan County, stopped her car behind a car that was signalling to make a left turn. Twenty to thirty seconds later, while plaintiff was still awaiting the turn of the car in front of her, a truck owned and operated by the defendants struck plaintiff's vehicle in the rear. Although the sight distance from the stopped car for traffic approaching from the rear was 785 feet, the defendant-driver said he pumped his brakes seven or eight times and down-shifted, but could not stop the truck before hitting the plaintiff's vehicle. The driver stated his brakes failed. There was testimony that the truck driver told the police officer at the scene that he had previously informed his employer that the brakes were faulty. In another proceeding, the defendant truck driver pleaded guilty to operating a vehicle with inadequate brakes. In this proceeding, the jury returned a verdict in favor of the plaintiff in the amount of $46,600.

On this appeal, defendants urge that it was reversible error for the Trial Judge to refuse their request to charge the "emergency rule" doctrine. The trial court's refusal to so charge was correct, for the emergency rule doctrine is bottomed upon the principle that the situation suddenly and unexpectedly confronted must not be of the defendant's own making, unlike the situation in the instant case (Kinsfather v. Grueneberg, 47 A.D.2d 789, 365 N.Y.S.2d 903).

The further contention that the charge in regard to brake failure was erroneous is also without merit. Every motor vehicle must have adequate brakes in good working order sufficient to control the vehicle at all times (Vehicle & Traffic Law, § 375). Failure to obey that statute is negligence unless an emergency excused the violation or if the failure of the brakes was unexpected and defendant had exercised reasonable care to keep the brakes in good working order. There was absolutely no proof in this case that the defendant had used reasonable care to keep the brakes in good working order. The trial court's charge to the jury was correct (Manny v. Casale, 15 A.D.2d 857, 224 N.Y.S.2d 291; Wheeler v. Rabine, 15 A.D.2d 407, 224 N.Y.S.2d 483; Alongi v. Bueter, 286 App.Div. 990, 144 N.Y.S.2d 756).

In regard to the contention of the defendants as to the trial court's charge to the jury concerning the failure of the plaintiff to wear a seat belt, we note that there was no objection taken to this charge and thus the error, if any, was not preserved for our review. In regard to the contention of the defendants as to the trial court's admission into evidence of a police accident report, it is clear that if there were error in such admission it is not of such nature as to require reversal. The manner in which the accident occurred was not an issue in this case. The parties were in agreement as to the relative positions of the vehicles at the time of the accident, and the defendant...

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10 cases
  • Gasperini v. Center for Humanities, Inc.
    • United States
    • U.S. Supreme Court
    • June 24, 1996
    ...instance, and appellate judges ordinarily deferred to the trial court's judgment. See, e. g., McAllister v. Adam Packing Corp., 66 App. Div. 2d 975, 976, 412 N. Y. S. 2d 50, 52 (3d Dept. 1978) ("The trial court's determination as to the adequacy of the jury verdict will only be disturbed by......
  • Juiditta v. Bethlehem Steel Corp.
    • United States
    • New York Supreme Court — Appellate Division
    • May 23, 1980
    ...be within reasonable bounds" (Riddle v. Memorial Hosp., 43 A.D.2d 750, 751, 349 N.Y.S.2d 855, 856; see also McAllister v. Adam Packing Corp., 66 A.D.2d 975, 976, 412 N.Y.S.2d 50). A jury's assessment of damages should not be disturbed unless it is so excessive or inadequate that it shocks t......
  • Sweeney v. McCormick
    • United States
    • New York Supreme Court — Appellate Division
    • March 22, 1990
    ...condition, which could not have been reasonably anticipated" (1 NY PJI 2:14, at 83 [2d ed] [1989 supp]; see, McAllister v. Adam Packing Corp., 66 A.D.2d 975, 976, 412 N.Y.S.2d 50). Furthermore, it is settled law that the emergency doctrine has no application where, as here, the party seekin......
  • Tepoz v. Sosa
    • United States
    • New York Supreme Court — Appellate Division
    • July 7, 1997
    ...423; McConnell v. Nabozny, 110 A.D.2d 1060, 489 N.Y.S.2d 24; Brogan v. Zummo, 92 A.D.2d 533, 459 N.Y.S.2d 293; McAllister v. Adam Packing Corp., 66 A.D.2d 975, 412 N.Y.S.2d 50; Ortiz v. Kinoshita & Co., 30 A.D.2d 334, 292 N.Y.S.2d BRACKEN, J.P., and O'BRIEN, SANTUCCI, FRIEDMANN and GOLDSTEI......
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