Mertens v. Agway, Inc., 66 Civ. 1375.

• Decision Date: 22 December 1967
• Docket Number: No. 66 Civ. 1375.,66 Civ. 1375.
• Citation: 278 F. Supp. 95
• Parties: Robert MERTENS and Gertrude Mertens, Plaintiffs, v. AGWAY, INC., and Earl Schrom, Defendants.
• Court: U.S. District Court — Southern District of New York

278 F. Supp. 95

Robert MERTENS and Gertrude Mertens, Plaintiffs, v. AGWAY, INC., and Earl Schrom, Defendants.

No. 66 Civ. 1375.

United States District Court S. D. New York.

December 22, 1967.

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Barry, McTiernan & Congdon, New York City, for plaintiffs, Roger P. McTiernan, and Michael R. Treanor, New York City, of counsel.

McLaughlin, Fiscella & Biancheri, New York City, for defendants, John J. Biancheri, of counsel.

MANSFIELD, District Judge.

In this diversity suit by a husband and wife for personal injuries to both of them caused by an automobile collision in Dutchess County, New York, plaintiffs move pursuant to Rule 56(c), F.R.Civ.P., for summary judgment on the issue of liability. The material facts not in dispute, as revealed in the affidavits of the parties, are as follows:

Shortly after 5:00 P.M. on April 19, 1966, plaintiff Robert Mertens, a Vermont resident, was driving his automobile in a northerly direction on Route 82 in the town of LaGrange, Dutchess County, with his wife, Gertrude Mertens, sitting in the right, front seat as the sole passenger. It was daylight. Although the weather was cloudy, visibility was good and the road was dry. At this stretch in the road, Route 82 is a two-lane hard-surface highway with a double yellow line in the middle separating the two lanes.

As plaintiffs were proceeding northward in their car, Earl Schrom, a New York resident, was driving a 5-ton 1965 Ford Spreader truck southward on the same road. The truck, laden with fertilizer, was owned by the defendant Agway, Inc., a New York corporation, and Schrom was operating it in the course of his employment with Agway. At a point where there was a slight curve in Route 82, the truck swung or drifted across the double yellow line into the opposing lane going at about 30 to 35 miles per hour and hit the plaintiffs' oncoming car, which was located entirely in the opposing lane. The much heavier truck demolished the front end of the small car and after spinning it around continued down the wrong side of the road for 200 feet, plowing into a bank on that side of the road.

At a Motor Vehicle hearing held on February 16, 1967, pursuant to § 510 of the New York State Vehicle and Traffic Law, McKinney's Consol.Laws, c. 71, defendant Schrom testified to the following:

At a point about three or four miles before his truck collided with plaintiffs' car, the truck hit a hole in the road. Thereafter it kept "drifting back and forth" on the road and "several times" across the center line into the opposing lane, with the result that he had difficulty controlling it. He did not stop the truck, however, or turn it into a service station located along the road before coming to the scene of the accident. Instead, he continued to drive the truck southward on Route 82 because it was late and he wanted to reach his destination. Just before the collision his truck drifted across the double yellow line and into the opposing lane and hit the plaintiffs' oncoming car, which was "entirely in its own northbound lane".

Defendant Schrom's version of the accident was corroborated by Andrew R. Bowles, driver of an automobile that was following the truck in its southbound course on Route 82. Bowles testified at the Motor Vehicle hearing that he had followed the truck for "approximately two and a half miles before the scene of the accident", and that "at the time of the accident the truck that was in front of me crossed over into the opposing lane, the northbound lane, and struck another vehicle", which seemed to be "entirely in its own lane at the time of the collision". With respect to the truck's movements prior to the time of the accident, Bowles testified:

"Q At the point where the truck crossed over into the opposing lane, was this an abrupt crossing over or gradual moving over?

"A It looked to me as if the truck were drifting.

"Q Up to that point had you noticed anything unusual about the operation of the truck as you were following it?

"A Yes. The truck prior to that from the time I came up behind it, not too far past Milewood Road, the truck appeared to be drifting over to the left hand side. Not a sharp cutting over and back but it seemed to be drifting and on several occasions crossed over the lines.

It seemed as if the operator were having trouble keeping it in its own lane."

A New York State Police investigator, Henry G. Reimer, testified that at 8:00 P.M. on the evening of the accident, the defendant Schrom gave a description as to the accident that was substantially the same as that later testified to by Schrom, including the fact that his truck "went over into the left hand lane and struck the Mertens' vehicle".

On June 2, 1966, defendant Schrom pleaded guilty before the New York Court of Special Sessions, Dutchess County, Town of LaGrange, to a charge that at the time of the collision he operated his truck in violation of § 1126 of the New York Vehicle and Traffic Law, which provides:

"§ 1126. No-passing zones

"(a) When official markings are in place indicating those portions of any highway where overtaking and passing or driving to the left of the roadway would be especially hazardous, no driver of a vehicle proceeding along such highway shall at any time drive on the left side of any pavement markings designed to indicate those portions of any highway where overtaking and passing or driving to the left of the roadway would be especially hazardous."

A double line is a pavement marking designed to indicate that passing to the left of it on the roadway would be especially hazardous.

The Referee in charge of the Motor Vehicle hearing, Burton J. Bloom, found as follows:

"I find that on April 19, 1966, Earl Schrom was operating a motor vehicle in violation of Section 1126(a) of the Vehicle and Traffic Law, in that he drove to the left side of the pavement markings, namely, a double solid dividing line designed to indicate those portions of the highway where passing to the left would be especially hazardous considering the condition of his vehicle at the time of this accident.

"There is evidence in the record that said vehicle might have suffered a defect after it passed over a hole in the road.

"However, I find that Mr. Schrom had knowledge of the defective condition well in advance of the accident, in that he had noticed the drifting of the vehicle over the center of the road on several occasions according to his testimony before arriving at the scene of the accident, but took no steps to correct said defect, although he had passed by a service station immediately before arriving at the scene of the accident.

"I therefore find that he was fully responsible for the violation and knew or should have known that this vehicle was in danger of crossing the road and coming in contact with an oncoming vehicle, and that said violation, therefore, was a willful violation."

Plaintiff Robert E. Mertens sustained serious injuries as a result of the accident which left him unconscious for a long period, and he now suffers from retrograde amnesia, lacking recollection of the accident or the events immediately before or after it. His wife, however, has executed an affidavit stating that at the time of the accident her husband was driving his car at a moderate rate of speed in a northerly direction on Route 82 and that she was reading a book and did not contribute in any way to the happening of the accident.

Defendants do not dispute any of the foregoing evidence nor have they filed any affidavits made on personal knowledge which set forth admissible facts that raise any issues with respect to the sworn proof offered by the plaintiff. Defendants contend, however, that the undisputed proof raises material issues as to (1) whether defendants were negligent, and (2) whether plaintiffs were free from contributory negligence. With respect to defendants' negligence, they suggest the possibility that the "swerving of the motor vehicle was the result of a defective mechanism which was caused by the truck hitting a hole in the road" and point to the finding of the Referee that the "vehicle might have suffered a defect after it passed over a hole in the road" and to testimony of Schrom that he continued driving the truck after it hit the hole because he thought that his "load" could have shifted. With respect to contributory negligence, defendants point to the fact that plaintiffs have failed to answer certain interrogatories asking for distances between the vehicles, the length of time when the defendants' truck was across the lane-divider and the like. Defendants, however, have not offered any proof indicating that the plaintiffs may have been contributorily negligent. On the contrary defendant Schrom's undisputed statement is that plaintiffs' car was proceeding northward entirely in its own lane, and Mrs. Mertens has sworn that it was proceeding at a moderate rate of speed.

The sole question before the Court on this motion is whether on the face of the record there...