Mravlja v. Hoke
| Decision Date | 27 November 1964 |
| Citation | 254 N.Y.S.2d 162,22 A.D.2d 848 |
| Court | New York Supreme Court — Appellate Division |
| Parties | John MRAVLJA, Appellant, v. Richard HOKE, Respondent. Gustave CHRISTMAN, Respondent, v. John MRAVLJA and Richard Hoke, Appellants. |
Robert H. Ecker, Cobleskill, Friedman & Ladd, F. Van D. Ladd, Schenectady, for appellant Mravlja.
Hesson, Ford & Grogan, Edward J. Grogan, Albany, for appellant Hoke.
George W. Stroebel, Jr., Schenectady, for respondent.
Before HERLIHY, J. P., and REYNOLDS, TAYLOR, AULISI and HAMM, JJ.
The evidence adduced at the joint trial of these personal injury actions arising from a collision between two motor vehicles which occurred on February 14, 1963 at about 6:40 A.M. at the intersection of U. S. Route 20 and Lykers Road in Schoharie County presented questions of negligence and contributory negligence which were properly submitted to the jury in a comprehensive charge to which no exception was taken. Its finding of concurrent negligence on the part of the operators of the vehicles involved is not against the weight of the credible evidence.
The use by defendant Hoke of a portion of his pre-trial deposition, erroneously permitted in the circumstances, would seem not to have been of prejudicial significance for the reason that theretofore Hoke had corrected his prior testimony inconsistent therewith to conform to the tenor of the deposition.
At the request of Hoke's counsel the court charged the applicability of subdivision (a) of section 1201 of the Vehicle and Traffic Law. In the absence of an exception or a request the trial court's omission to read the definition contained in section 147 thereof cannot be regarded as reversible error. (CPLR, § 5501, subd. [a], par. 3; Lankes v. Loyal Order of Moose, Buffalo Lodge No. Eight, 12 A.D.2d 1001, 212 N.Y.S.2d 653, affd. 10 N.Y.2d 947, 224 N.Y.S.2d 24, 179 N.E.2d 864; Brown v. Du Frey, 1 N.Y.2d 190, 195, 151 N.Y.S.2d 649, 653, 134 N.E.2d 469, 471.)
While the verdict for plaintiff Christman was large, we are unable to say that it was excessive.
Judgment in the Mravlja action affirmed, without costs; judgment and order in the Christman action affirmed, with costs.
HERLIHY, J. P., and TAYLOR, AULISI, and HAMM, JJ., concur.
REYNOLDS, J., dissents in the following memorandum:
The seriously injured plaintiff Mravlja did not, in my opinion, receive a fair trial, because of vital and prejudicial errors in the rulings of the trial court and in the charge to the jury. Another jury under proper guidance should take a fresh look at this case. This plaintiff contends that he approached the intersection and stopped his car on Lykers Road. He was unable to see because of a seven foot high snow bank on his left. He was not required to get out of his car and walk out onto U. S. Route 20 to look for traffic. He edged his car forward slowly to a point where he could see westerly up Route 20. At this point about one-half of his car was beyond the snow bank on Route 20 and partially blocking the driving lane. At that point he saw the defendant Hoke about 600 feet up the road westerly. He tried to accelerate to clear the driving lane but the intersection was covered with snow and he was unable to obtain traction. He proceeded ahead at about two to three miles per hour. As he crossed into the passing lane the defendant Hoke turned his vehicle from the driving lane as to pass on plaintiff's front, using the mall area between the east and west traffic lanes. Rather than continue on a collision course, plaintiff stopped. However, instead of continuing in his chosen path, the defendant Hoke turned his car to the right and came straight down the passing lane striking plaintiff's stopped car broadside (left side). At the time of the accident, defendant could have passed to the front of plaintiff or could have passed to his rear.
The driving lane of Route 20 was dry and bare yet defendant neither put on his brakes nor perceptively slowed down. On these facts, under the statutes, there can be no doubt that plaintiff had the right of way.
The defendant Hoke, when called as a witness in his own behalf, stated that he first saw the Mravlja car entering the highway when he was about 500 feet from it. This was solidified by also expressing the distance by reference to the place where the divided highway began. When asked where he was on the highway when he first saw the Mravlja car he replied 'Just after I come to this divided highway'. The divided highway began a substantial distance west of the intersection, well over five hundred feet away. These statements were made after he had admittedly heard his friend and passenger Christman say that the Mravlia car did not come out from Lykers Road until the Hoke car was three to five car lengths away. This testimony, with this partially blind intersection accident, was, of course, most significant. This was an admission that he could see plaintiff entering this intersection at a distance of almost the length of two football fields. A verdict of the jury in favor of defendant Hoke and against plaintiff Mravlja on this testimony would be against the weight of the evidence. Such testimony being uninhibited had a distinct ring of truth. This, however, was a departure from Hoke's earlier pre-trial testimony where he claimed he was three to four car lengths from the Mravlja car when he first saw it. We are told that after a recess and presumably a conference between Hoke and his counsel, Hoke changed his prior testimony about where he first saw the Mravlja car to conform to his pre-trial testimony. After Hoke recanted, his attorney asked to read his prior deposition which supported his changed position, basing his right to do so on CPLR Rule 3117(b), which states:
This the trial judge denied, and I think properly so, on the grounds that when Mravlja's attorney read parts of the deposition earlier in the trial the court had asked Hoke's attorney if he wanted to read any of the remainder and he said, no. Further it seems that the part sought to be read did not concern the part which had been previously read. (See 3 Weinstein-Korn-Miller, N.Y. Civil Practice, § 3117.09.) However, the trial judge allowed the deposition to be read under CPLR Rule 3117(a)(1) which is as follows:
'1. any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness.'
Appellant objected to this on the grounds that respondent was impeaching himself and requested that in any event the jury be instructed that the reading of this deposition was solely to contradict or impeach Hoke's prior testimony and not as evidence in chief. The court overruled both the objection and the request.
It is may opinion that the deposition should not have been read. Prior to the CPLR there was some authority that a party-defendant's deposition could be read in evidence in chief by his counsel (Masciarelli v. Delaware & Hudson R.R. Co., 178 Misc. 458, 34 N.Y.S.2d 550). Under CPLR Rule 3117 this is not possible unless the conditions of CPLR Rule 3117(a)(3) are met (they are not here) (5 Adv. Comm. Rep. p. 467; 3 Weinstein, supra, § 3117.04). This leaves only CPLR Rule 3117(a)- (1). Section 3117(a)(1) is designed to be consistent with the common law impeachment through proof of inconsistent statements. 'Such use of a deposition is for the limited purpose of contradicting or impeaching the testimony of the deponent and not as evidence in chief in proving or disproving a material proposition.' (3 Weinstein, supra, § 3117.03; Matter of Roge v. Valentine, 280 N.Y. 268, 20 N.E.2d 751). At common law a party was not permitted to impeach his own witness by showing that he made a prior contradictory statement. Civil Practice Act § 343-a provided limited relief from this position but being in derogation of the common law rule was strictly construed. CPLR Rule 4514, the present counterpart to C.P.A. § 343-a, states:
'In addition to impeachment in the manner permitted by common law, any party may introduce proof that any witness has made a prior statement inconsistent with his testimony if the statement was made in a writing subscribed by him or was made under oath.'
This, of course, would clearly allow a party to impeach his own witness (see 5 Weinstein, supra, § 4514.01 for a discussion of the background of Rule 4514) but Rule 4514 goes no further than the prior law (5 Weinstein, supra, § 4514.02); the common law method of impeachment is not affected (§ 4514.03); statements can be introduced for impeachment only and not as evidence in chief (§ 4514.04). The first difficulty with the present prior statement is that it is not...
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...testimony of a party is erroneous, although it would not usually be prejudicial and of itself is not in this case (see Mravlja v. Hoke, 22 A.D.2d 848, 254 N.Y.S.2d 162, affd.17 N.Y.2d 822, 271 N.Y.S.2d 271, 218 N.E.2d 314). However, the court permitted the defendant's attorney to become a w......
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...or to charge the definition of 'stopping' (Vehicle & Traffic Law, § 147), could not be regarded as reversible error (Mravlja v. Hoke, 22 A.D.2d 848, 254 N.Y.S.2d 162, affd. 17 N.Y.2d 822, 271 N.Y.S.2d 271, 218 N.E.2d 314; CPLR 5501, subd. (a), par. (3)). Furthermore, an examination of subdi......
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