Myers v. Town of Harrison

• Decision Date: 16 February 1971
• Docket Number: 102,Dockets 34569,No. 101,34595.,101
• Citation: 438 F.2d 293
• Parties: Letitia E. MYERS, as Administratrix of the Goods, Chattels and Credits which were of Charles S. Myers, deceased, Plaintiff-Appellee-Appellant, v. TOWN OF HARRISON, Defendant-Appellant-Appellee, and The CITY OF WHITE PLAINS, M V A I C, Orienta Bus Line, Inc., Arthur Pelchat and William Smith, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

438 F.2d 293 (1971)

Letitia E. MYERS, as Administratrix of the Goods, Chattels and Credits which were of Charles S. Myers, deceased, Plaintiff-Appellee-Appellant, v. TOWN OF HARRISON, Defendant-Appellant-Appellee, and The CITY OF WHITE PLAINS, M V A I C, Orienta Bus Line, Inc., Arthur Pelchat and William Smith, Defendants.

Nos. 101, 102, Dockets 34569, 34595.

United States Court of Appeals, Second Circuit.

Argued November 9, 1970.

Decided February 16, 1971.

Alfred S. Julien (Julien, Glaser, Blitz & Schlesinger, New York City, Morris Honig, New York City, of counsel), for plaintiff-appellee-appellant.

Bernard Helfenstein, Brooklyn, N. Y. on the brief, for defendant-appellant-appellee.

Before SMITH and FEINBERG, Circuit Judges, and LEVET,^* District Judge.

J. JOSEPH SMITH, Circuit Judge:

This is an appeal from a judgment in favor of plaintiff after a trial before Judge Motley in the United States District Court for the Southern District of New York and a jury in an automobile negligence case which resulted in the death of the appellee's husband. The jury awarded damages in the amount of $481,250. The plaintiff has cross-appealed on the question of the proper rate of interest to be applied to the damage award. We find no error on the issue of liability. We find error in the charge on damages and reverse and remand for new trial on damages only.

At 1:35 a. m. on the morning of September 21, 1963, the appellee's intestate, Charles Myers, was proceeding in a northerly direction on North Street in White Plains, New York in a taxicab which he was operating. Myers came upon a police vehicle with its roof-light flashing operated by Patrolman Victor Fiore of the Harrison Police Department which was parked diagonally across part of North Street, which at that point is a four-lane highway.¹ Myers brought his taxi to a stop near the police car and inquired as to what was occurring. Officer Fiore testified that he yelled at Myers to "Get the hell out of here" and then started to get out of the patrol car. As he did so, Fiore saw a car driven by one William Smith come over the top of a hill some 600 to 800 feet away at a very high rate of speed (90 miles per hour). Officer Fiore jumped to the side of the road as Smith's vehicle collided with the patrol car and the taxi. Smith was injured, and Myers was thrown out of his car and instantly killed.

The police pursuit which ended with the accident had begun in downtown Harrison when Officer Porto of the Harrison Police Department was told by an unidentified motorist that a black Pontiac had just backed into his parked car. Porto then pursued the Smith vehicle in order to ascertain whether it had been involved in the incident which had been reported to him. Porto turned on his lights and siren, but the Smith vehicle failed to stop. Porto pursued Smith through the Town of Harrison at speeds ranging up to 100 miles per hour, and he was soon joined by two other police vehicles in the chase. Their route took them through largely residential areas of the town over narrow, winding, and wet roads.

In the meantime, Fiore had been ordered to take up a position on North Street about one quarter of a mile from the place that the accident occurred. Instead of remaining there, however, Fiore on his own initiative moved farther up North Street to a position near the entrance to St. Agnes Hospital at the bottom of a rather steep hill where a driver heading north would not be able to see Fiore's patrol car until he reached the top of the hill some 600 to 800 feet away. There was expert testimony which is uncontradicted that a vehicle traveling at the rate of speed which Fiore knew the Smith car to be going could not possibly have stopped in less than 1750 feet.

The questions raised by the appellant are:

(1) Is there sufficient evidence to establish negligence on the part of the appellant as to the manner in which the pursuit was conducted?

(2) Is there sufficient evidence to establish negligence on the part of the appellant as to the way in which Fiore\'s vehicle was positioned on the highway?

(3) Were the negligent actions of appellant the proximate cause of the death of Myers?

(4) Was Myers guilty of contributory negligence?

(5) Was the amount of the damage award excessive?

Section 1104 of the New York Vehicle and Traffic Law, McKinney's Consol. Laws, c. 71, provides:

(b) The driver of an authorized emergency vehicle may:

3. Exceed the maximum speed limits so long as he does not endanger life or property.

* * * * * *

(e) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.

L.1959, C. 775, Eff. Oct. 1, 1960

The appellee argues that the weather and road conditions over the course of the route of pursuit and the excessive speeds involved, combined with the fact that, so far as the Harrison Police knew, Smith had only been involved in a minor traffic incident, made the actions of the police unreasonable and showed a "lack of regard for the safety of all persons." See, e. g. LoCicero v. Columbia Casualty Co., 268 F.2d 440 (5 Cir.), cert. denied, 361 U.S. 917, 80 S.Ct. 261, 4 L.Ed. 2d 187 (1959).

The case of Stanton v. New York, 29 A.D.2d 612, 285 N.Y.S.2d 964, aff'd 26 N.Y.2d 990, 311 N.Y.S.2d 28, 259 N.E. 2d 494 (1970) is relied upon heavily by appellant. There one Hayden, who was being pursued for a traffic violation by the state police, crossed the divider of an expressway and fled in a southbound direction in the northbound passing lane. The police officer also crossed into the northbound lane and chased Hayden at speeds up to 100 miles per hour. Hayden ended up colliding with a vehicle operated by plaintiff's intestate. The Court of Claims found no proof of negligence on the part of the state trooper in his conduct of the pursuit, and the Court of Appeals affirmed on the majority opinion of the Appellate Division. That court noted:

The statutory requirement of section 1104 of the Vehicle and Traffic Law that the operator of an emergency vehicle should have "due regard for the safety of all persons" and the imposition of responsibility for "the consequences of his reckless disregard for the safety of others" are not such as to require compliance with the generally accepted definition of negligence. The immunity afforded the driver of an emergency vehicle from the regulations governing speed and direction of travel can only be denied when there is evidence of an exercise of these privileges in excess of reasonableness under the circumstances which the trial court did not find here.

While the Appellate Division thus made it clear that the normal standards of negligence do not apply to a law enforcement officer operating under section 1104, the court in Stanton was reviewing a non-jury trial in the Court of Claims where the trial judge had decided as a question of fact that the pursuing trooper was not negligent or reckless. Here, on the other hand, the trier of fact has found such negligence on the part of appellant, and the only question before this court is whether there was sufficient evidence on this question to allow it to be submitted to the jury. Speeds of up to 100 miles per hour on wet and narrow roads, through a residential section, in pursuit of a traffic violator might well be said to create an unreasonable risk to public safety and there was expert testimony that pursuit in these circumstances does not constitute "common and accepted good police practices." The after-acquired information that the pursued vehicle had been stolen does not excuse the negligence involved in the method of apprehending a person known only to have been involved in a minor traffic incident. N. B. McCormick v. State, 34 Misc.2d 806, 229 N.Y.S. 2d 441 (1962).

Smith was also obviously guilty of negligent conduct, but this does not discharge the appellant's liability as a joint tortfeasor. The degree of culpability of each does not affect their respective responsibilities, for each is separately liable for the full extent of the damage caused. Pearson v. City of New York, Sup., 142 N.Y.S.2d 14 (1955); Mazloum v. New York, N. H. & H. R. R., Sup., 115 N.Y.S.2d 238 (1952).

The next question is did the positioning of the patrol car by Officer Fiore at the bottom of a steep incline on North Street and Fiore's failure to take any precautions to warn approaching motorists constitute sufficient evidence of negligence to go to the jury. In Commisso v. Meeker, 8 N.Y.2d 109, 202 N.Y.S.2d 287, 168 N.E.2d 365 (1960), the defendant, sheriff, had parked his vehicle on the highway while giving a ticket to a speeding motorist. The plaintiff was involved in a head-on collision as he attempted to pass the obstructing vehicle. The New York Court of Appeals upheld a jury finding of negligence on the part of the sheriff noting:

Certainly the jury had a right to find on the basis of the foregoing evidence that the Deputy Sheriff did not act reasonably under the circumstances and that he negligently obstructed the highway. Taking the view of the evidence most favorable to plaintiff, as we must do in light of the verdict in her favor, it may be said that Zambon chose to obstruct the travelled part of the roadway on a night when traffic was exceptionally heavy, and failed to make full use of the 15-foot expanse of firm shoulder which was available to him. The jury also had a right to find on the facts when thus viewed that Zambon\'s negligence was a proximate cause of the accident and plaintiff\'s resulting injuries — together, of course, with the negligent acts of Mastrangelo and Meeker (the drivers of the two cars which collided). 202 N.Y. S.2d at 289-290, 168 N.E.2d at 367. See, e. g. Thain v. City, 35 A.D.2d 585, 313 N.Y.S.2d 484 (1970).

In the present case, there was expert testimony that...