Lo Piccolo v. Knight of Rest Products Corp.

• Decision Date: 17 March 1959
• Citation: 183 N.Y.S.2d 301,7 A.D.2d 369
• Parties: Charles LO PICCOLO, Respondent, Marcy Drucker and Leonard Hoffman as Administrator of Samuel Hoffman, co-partners, doing dusiness under the name of Guarantee Specialty Co., Plaintiffs, v. KNIGHT OF REST PRODUCTS CORPORATION, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 301

183 N.Y.S.2d 301

7 A.D.2d 369

Charles LO PICCOLO, Respondent, Marcy Drucker and Leonard Hoffman as Administrator of Samuel Hoffman co-partners, doing dusiness under the name of Guarantee Specialty Co., Plaintiffs, v. KNIGHT OF REST PRODUCTS CORPORATION, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

March 17, 1959.

John G. Reilly, New York City, of counsel (Harold V. McCoy, New York City, with him on the brief; Reilly & Reilly, New York City, attorneys), for defendant-appellant.

Frederick W. Scholem, New York City, of counsel (Hyman Goldman, New York City, with him on the brief; Frederick W. Scholem, New York City, attorney), for respondent. Before BOTEIN, P. J., and BREITEL, RABIN, McNALLY and BERGAN, JJ.

BREITEL, Justice.

In a personal injury negligence action the jury returned a verdict for defendant. On motion, the trial court set the verdict aside as contrary to the weight of the credible evidence. Defendant appeals, urging that plaintiff failed to make out a prima facie case under the rule in Galbraith v. Busch (267 N.Y. 230, 196 N.E. 36), and that, in any event, the verdict should not have been set aside, as the jury would not be required, on the facts in the case, to draw an inference of negligence.

The order setting aside the verdict in favor of defendant and granting a new trial should be reversed, the verdict reinstated, and judgment entered in favor of defendant, dismissing the complaint.

On August 1, 1950, on the Manhattan Bridge in this City, two trucks, one driven by plaintiff and the other owned by defendant, collided headon. The day was rainy and the road surface slippery. The roadway was constructed of steel-ribbing with recessed concrete fill, allegedly adding to the slipperiness of the surface. As a result of the impact plaintiff was thrown from his truck and sustained injuries.

Defendant not only disputed liability but disputed the nature and extent of the injuries allegedly sustained by plaintiff.

Defendant, however, offered no testimony on the question of liability. Its driver was not called as a witness. The sole evidence on the cause of the accident came from the witnesses produced by plaintiff. Thus, plaintiff testified, referring to defendant's truck, that it 'shoots out from my extreme left lane and with a flash it's right in front on my truck, hit me head on and I remember just flying, and that's all I remember'. Another truck driver, John Babick, who was driving immediately behind plaintiff's truck, testified as follows:

'Well, I was driving up--this pickup panel was in front of me, this other truck came down and sidewiped him, hit him head on, swung him around and went right across the other side of the lane, and the whole highway tied up and this fellow here was lying out in the roadway with his head bleeding and bleeding from the mouth. That's all I remember.'

The foregoing was the only direct testimony on the cause of the accident.

Plaintiff was cross-examined by defendant, largely to establish a prior accident in 1946. In that accident plaintiff sustained an injury to his back. In this case, plaintiff also claimed injuries to the back, in addition to a disputed fracture of a facial bone. During the same cross-examination, plaintiff's increased earning power since the accident was also established. Plaintiff was not cross-examined as to the cause of the accident. Plaintiff's witness, Babick, was cross-examined primarily by defendant to establish the unusual construction of the roadway and the slipperiness of the surface. When pressed as to whether the surface was very slippery, the witness said: 'It was slippery, I am not saying very slippery'. Defendant, on cross-examination, developed similar evidence from the police officer, who had come to the scene after the accident, namely, to the effect that the weather was drizzling and that the roadway surface consisted of steel mesh that protruded past the concrete base, that is, was 'waffle-iron in that respect'.

As noted earlier, defendant offered no evidence on its own case as to the cause of the accident. It offered, however, the testimony of a physician selected from the court-designated medical panel. He testified to the finding in the hospital record of the facial-bone fracture, but added that he had not had the opportunity to verify that fracture. With regard to plaintiff's back injuries and neurological complaints, he minimized or negated the conditions and suggested that the litigation was a cause of the claimed symptoms. He also described the lack of symptoms when plaintiff's attention was distracted in the course of his examination. In setting aside the verdict the trial court restrainedly observed that 'the credibility of certain witnesses was certainly weakened'. Since, except for the medical panel physician, all the witnesses who testified were those provided by plaintiff, the reference to them is unequivocal.

This was the substance of the proof in the case.

Since the case of Galbraith v. Busch (supra, 267 N.Y. 230, 196 N.E. 36), it has been settled law in this State that proof merely of the sudden swerving of an automobile from its own lane is not prima facie evidence of negligence or evidence sufficient, without more, to permit an inference that the driver was negligent. The court then observed that a sudden swerve might be due to several causes, including the operation of the automobile, the condition of the vehicle, or the condition of the roadway. As there were no extraordinary conditions in the road, however, which would account for the accident, it was held that the probable cause of the accident involved the operation of the automobile or some defect in it. Since Galbraith was a guest, an unknown defect in the automobile would not ground liability, as a guest was owed no duty with regard to such defects. In that respect the case turned on the fact that Galbraith was a guest. But, in a larger sense, the holding is that a party, who seeks to make out a prima facie case where there is insufficient evidence to apply the doctrine of res ipsa loquitur, must establish that every probable cause of the accident rests on the violation of a duty owed to him.

In this case there was evidence of 'extraordinary conditions' with respect to the road, namely, the steel-ribbing-concrete construction and the added slipperiness of the surface due to the rain or drizzle. Consequently, the analysis and result of the Galbraith case may not be avoided. The rule of the Galbraith case has been consistently followed (Lahr v. Tirrill, 274 N.Y. 112, 8 N.E.2d 298; Cole v. Swagler, 308 N.Y. 325, 125 N.E.2d 592; Hollenbeck v. Hollenbeck, 286 App.Div. 937, 142 N.Y.S.2d 911; cf. Marinan v. Kronberger, 280 N.Y. 640, 20 N.E.2d 1011).

Before the rule had been settled, this Court had held differently in a case where a truck, unexplainedly, had jumped the sidewalk and struck some pedestrians. Locicero v. Messina, 239 App.Div. 635, 267 N.Y.S. 901. Whether the Locicero case may be reconciled on the doubtful distinction that the vehicle jumped a pedestrian sidewalk, rather than merely swerving from a proper lane, need not now be determined.

Just a month before the Locicero case was decided, however, this Court decided Bennett v. Edward (239 App.Div. 157, 267 N.Y.S. 417). The facts there were indistinguishable from those in the Galbraith case. It was held that the doctrine of res ipsa loquitur applied, and that the defendant had the burden to explain the accident and, if possible, overcome the 'presumption' of negligence. This is precisely the rule that was overturned in the Galbraith case. And it was the dissenter in the Galbraith case who relied upon the Bennett case, among others. So it was evident that, in 1933, the thinking of this Court rested upon a basis which was about to suffer total rejection in the Court of Appeals.

At first blush and as a novel proposition, it may seem that a driver whose vehicle suddenly swerves from its proper lane should have the duty to come forward and explain why the untoward event has occurred. Nevertheless, it is also understandable why the courts in this State have laid down the rule that it is not sufficient to place such a burden upon the defendant, if there are any circumstances which would otherwise reasonably account for the event without the defendant being negligent. ¹ In the Galbraith case, because the pavement was dry and the weather clear, the only two categories of causes which could account for the sudden swerving seemed to the court to be either negligent operation or negligent maintenance. In this case, there is an additional category of probable causes which could account for the sudden swerving of the automobile, namely, the peculiar construction of the roadway aggravated by wetness of the surface. In other words, the proof suggested a skid as strongly as it did a wheel-controlled deviation from the proper lane.

In any event, whether the Galbraith urle is justified or not, it has certainly become entrenched, and has been restated approvingly only so recently as in Cole v. Swagler, supra, 308 N.Y. 325, 125 N.E.2d 592. Not to be ignored as a policy factor is the wide availability which now exists to examine the defendant before trial and establish the circumstances of the accident; nor have the courts ignored the pervasiveness of liability insurance or been unaware of its practical consequences.

In considering the proof in this case as to whether the swerving was so sudden as to preclude any deliberateness in the operation of the automobile which, in turn, might be suggestive of negligence by the driver, the distinction laid down by Mr. Justice Bergan in Montgomery v. Humphrey, 284 App.Div. 365, 132 N.Y.S.2d 448 may not be ignored. In the Montgomery case, however, there was evidence in the record that before the accident, for some measurable interval, defendant's vehicle had begun to veer to the wrong side of the road, and...