Schlimmeyer v. Yurkiw

• Decision Date: 06 November 1975
• Docket Number: Nos. 1,2,s. 1
• Citation: 50 A.D.2d 616,374 N.Y.S.2d 427
• Parties: William H. SCHLIMMEYER, as father and natural guardian of John H. Schlimmeyer, an infant, et al., Respondents, v. Mark YURKIW et al., Appellants. Mark YURKIW, Appellant, v. Keith MacKECHNIE et al., Respondents. Action
• Court: New York Supreme Court — Appellate Division

Page 427

374 N.Y.S.2d 427

50 A.D.2d 616

William H. SCHLIMMEYER, as father and natural guardian of

John H. Schlimmeyer, an infant, et al., Respondents, v. Mark YURKIW et al., Appellants.

Mark YURKIW, Appellant, v. Keith MacKECHNIE et al., Respondents.

Action Nos. 1, 2.

Supreme Court, Appellate Division, Third Department.

Nov. 6, 1975.

Martin Rosenblum, Middletown (Michael M. Platzman, Middletown, of counsel), for appellant Yurkiw in Action No. 1.

Rassner & Rassner, New York City (Francis J. Nicosia, New York City, of counsel), for appellant Yurkiw in Action No. 2.

Goldstein & Goldstein, Monticello (Carl P. Goldstein, Monticello, of counsel), for respondent Schlimmeyer.

Appelbaum & Eisenberg, Liberty (Betram W. Eisenberg, Liberty, of counsel), for respondents in Action No. 2.

Before HERLIHY, P.J., and GREENBLOTT, SWEENEY, KANE and REYNOLDS, JJ.

MEMORANDUM DECISION.

Appeals from (1) a judgment of the Supreme Court, entered September 24, 1974 in Sullivan County, upon verdicts rendered at a Trial Term, in favor of plaintiffs in Action No. 1, and in favor of defendants in Action No. 2; (2) an order of said court, entered September 9, 1974, denying motions to set aside the verdicts; and (3) an order, entered January 10, 1975, denying a motion by defendants in Action No. 2 to change and limit their apportionate liability.

The infant plaintiff, John H. Schlimmeyer, was injured while riding as a passenger in a vehicle owned and operated by Mark Yurkiw when it collided with a vehicle owned by one James Murtha and operated by Keith MacKechnie on County Road 47 in Sullivan County. The accident occurred on June 10, 1972 about 3 o'clock in the afternoon. The road was clear and dry, albeit winding and bumpy, and the vehicles were traveling in opposite directions. Each driver contends he was on his own righthand side of the road, but that the other vehicle was on the wrong side of the road. The jury has returned a verdict in favor of the passenger against both drivers, and a verdict of no cause for action in the action of Yurkiw against the other driver and owner.

On this appeal defendant Yurkiw raises four issues. First, he maintains that the doctrine of last clear chance should apply. Use of this doctrine would be inappropriate in this case for it is applicable to plaintiffs, and here it is urged by Yurkiw in his role as a defendant. Moreover, contemporaneous negligence by both parties cannot be converted into a supervening cause by one party so as to free another from fault (Carey v. Rodden, 37 A.D.2d 115, 322 N.Y.S.2d 452). Secondly, he argues that the court did not properly charge the jury on the issues of contributory negligence and assumption of risk contending that a joint enterprise existed between himself and the infant plaintiff. This claim is wholly without merit (Ottmann v. Rockville Centre, 275 N.Y. 270, 9 N.E.2d 862), and we find no error in the charge by the court to the jury. Third, he attacks the verdict as being excessive. The infant plaintiff suffered several internal injuries including a bruise to the left lung, a fractured rib, and hemorrhaging requiring a splenectomy and gastrotomy. His stay in the intensive care unit of the hospital was prolonged, and his pain was severe. There are permanent injuries, and while the verdict of $45,410 for personal injuries may appear to be somewhat high, we do not find it excessive upon this record. Finally, the fact that the jurors were returned to the jury room to reconsider their verdict in order to report in...