Salsbury v. United Parcel Serv.
| Citation | 203 Misc. 1008 |
| Court | New York District Court |
| Decision Date | 23 March 1953 |
| Parties | Archie Salsbury, Plaintiff,<BR>v.<BR>United Parcel Service Inc., Defendant. |
S. Sawyer Le Vay for plaintiff.
John P. Smith and Vincent Gurahian for defendant.
Plaintiff sues for property damage to his automobile which occurred when his wife attempted to drive through a space to the left of the defendant's double-parked truck.
The accident took place on September 18, 1952, at about 11:30 A.M., on West 87th Street, between West End Avenue and Riverside Drive, in the borough of Manhattan. This is a one-way street going west. There were cars parked on both sides of the street. The defendant was double-parked, by necessity, in order to make deliveries of goods in the course of its business. The truck at all times remained stationary.
The testimony differs as to how close the truck was parked to the parked cars on the right. Plaintiff's wife testified she waited about five minutes before proceeding and sounded her horn while other cars behind her also sounded their horns in an effort to have the defendant's truck moved so that traffic could continue. Then, with the assistance of some bystanders, she tried to get through the space. In so doing, the plaintiff's front right fender came into contact with a piece of metal strip extending one inch from the left rear side of defendant's truck.
This court is indeed mindful of the fact that the present parking situation in New York City creates an exceedingly difficult problem for delivery trucks to make their deliveries without double parking. However, the Traffic Regulations do not exempt trucks. All double parking is expressly prohibited except to permit an emergency vehicle to pass safely, or upon order of a police officer, etc. The regulations do not exclude a truck from double parking even when it is actually and expeditiously engaged in loading or unloading merchandise (People v. Ressanen, 203 Misc. 167).
Double parking is a violation of an ordinance not a statute, and as such is not negligence per se but is deemed "evidence" of negligence. The violation of an ordinance may establish either a prima facie or a conclusive cause of action, dependent upon the facts and circumstances of the case (Martin v. Herzog, 228 N.Y. 164). There must be, however, a logical connection between the proven neglect of the statutory duty and the alleged negligence (Brown v. Shyne, 242 N.Y. 176; Corbett v. Scott, 243 N.Y. 66). Even where an ordinance is deemed to be applicable to the facts of a particular case, it must still be shown that its violation was the proximate cause of plaintiff's injury (Swift v. City of New York, 270 N.Y. 162; Walther v. News Syndicate Co., 276 App. Div. 169; LaRue v. Tiernan, 260 App. Div. 337, affd. 285 N.Y. 550). It must be established that the violation was a proximate or direct cause of the injury. That, ordinarily, is a question of fact (Hall v. Hepp, 210 App. Div. 149; Clark v. Doolittle, 205 App. Div. 697).
It is the contention of the defendant's attorney that the plaintiff's driver was guilty of contributory negligence and that it was her poor judgment in driving which caused the damage complained of by the plaintiff, in that the plaintiff's car struck a stationary truck, and he further contends that the voluntary act of the driver of the plaintiff's car was the proximate cause of the accident. However, the plaintiff's attorney proceeds on the theory of nuisance rather than negligence and contends therefore that the issue of contributory negligence is not presented.
Plaintiff's attorney cites the case of Sive v. Newman (N. Y. L. J., May 4, 1951, p. 1641, col. 6), wherein the Appellate Term, First Department, affirmed a judgment rendered in favor of a plaintiff who damaged his own car in attempting to get out of a parked position at the curb and struck the defendant's double-parked car. The defendant claimed he was in the refrigerator service business, and that he was answering an emergency call, and that he placed his police department emergency card on his car. There was no opinion by the Appellate Term or lower court. An examination of the record reveals that the case was tried on the theory of negligence rather than nuisance. So that the courts must have found that the plaintiff was free from contributory negligence.
In Harnik v. Levine (106 N. Y. S. 2d 460, affd. by a majority decision of the Appellate Term, 1st Dept., 202 Misc. 648) the Appellate Term held "double parking of defendant's car created an obstruction on the public highway in the nature of a nuisance." (P. 649) In that case the defendant's car was not a truck — it was a doctor's car. The doctor had double-parked in front of a hospital where he had been called to see a sick patient and had not been successful in his attempt to find a place to park at the curb. Nevertheless, the court held that the double parking was a violation of the traffic regulations and "constituted a public nuisance." It is true that the action was not for property damage. It was brought to recover for discomfort and inconvenience because the plaintiff could not extricate his car. The court allowed nominal damages, holding that the financial loss is similar to that recoverable when one wrongfully detains the property of another and distinguished the case from damages sought for mental suffering or injured feelings.
In Hayes v. Brooklyn Heights R. R. Co. (200 N.Y. 183) the court defined a public nuisance as the unlawful doing of an act or omission to perform a duty, which act or omission unlawfully interferes with or tends to render dangerous a street or highway. The weight of authority in New York appears to be that, except when the act is malum in se, the surrounding circumstances have a bearing upon the question (Melker v. City of New York, 190 N.Y. 481). A violation of the traffic regulations may be considered as some evidence of negligence in connection with the other facts and circumstances of the accident (Roles v. John A. Schwarz, Inc., 244 App. Div. 729).
Ordinarily, contributory negligence is not a factor in cases of nuisance (Francis v. Gaffey, 211 N.Y. 47; Clifford v. Dam, 81 N.Y. 52; Berl...
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Harvey v. Platten
...plaintiff to wait until the appellant's car was moved before removing his own car through the driveway (see Salsbury v. United Parcel Service, Inc., 203 Misc. 1008, 120 N.Y.S.2d 33), but that fact alone does not establish plaintiff's freedom from negligence (Massey v. Matza, 11 A.D.2d 36, 2......