Wartels v. County Asphalt, Inc.

• Decision Date: 11 May 1971
• Citation: 321 N.Y.S.2d 273,36 A.D.2d 394
• Parties: David E. WARTELS, Plaintiff-Appellant, v. COUNTY ASPHALT, INC., Ritangela Construction Corporation and William Robb, Defendants-Respondents, and Hurley Francis McDougall, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 273

321 N.Y.S.2d 273

36 A.D.2d 394

David E. WARTELS, Plaintiff-Appellant, v. COUNTY ASPHALT, INC., Ritangela Construction Corporation and William Robb, Defendants-Respondents, and Hurley Francis McDougall, Defendant.

Supreme Court, Appellate Division, First Department.

May 11, 1971.

Herman J. McCarthy, New York City, of counsel (Richard E. Coven, New York City, with him on the brief; Stern & Reubens, New York City, attorneys) for appellant.

John Nielsen, New York City, of counsel (Craig & Geen, New York City, attorneys) for respondent County Asphalt, Inc.

Frank B. Gass, New York City, of counsel (Robert E. Dowd, New York City, with him on the brief) for respondents Ritangela Construction Corp. and William Robb.

Before STEVENS, P.J., and NUNEZ, KUPFERMAN, STEUER and EAGER, JJ.

EAGER, Justice.

The record in this action to recover for personal injuries sustained in a highway accident is completely void of any proof of facts or circumstances supporting an inference that plaintiff exercised due care. Consequently, the trial court properly dismissed plaintiff's complaint.

'It is a fundamental principle in the law of this state that, in an action for personal injury based on the negligence of the defendant, the absence of negligence on the part of the plaintiff, contributing to the injury, must be affirmatively shown by the plaintiff either by direct proof or by circumstances, and that no presumption arises from the mere happening of an injury and proof of negligence on the part of the defendant, that the plaintiff was free from blame.' (Weston v. City of Troy, 139 N.Y. 281, 282, 34 N.E. 780). Where, as here, 'circumstances point as much to the negligence of the plaintiff as to its absence, or point in neither direction, a nonsuit should be granted' (Tornambe v. Tornambe, 16 A.D.2d 680, 227 N.Y.S.2d 237, affd. 12 N.Y.2d 1003, 239 N.Y.S.2d 131, 189 N.E.2d 625).

Although the plaintiff, who had by amnesia lost his memory of the events immediately preceding the accident, could very properly be held to a lesser degree of proof, the burden remained upon him to establish a case. The rule imposing a 'lesser burden' as applied to the amnesiac plaintiff, 'does not, however, shift the burden of proof or eliminate the need for plaintiffs to introduce evidence of a prima facie case.' Schechter v. Klanfer, 28 N.Y.2d 228, 321 N.Y.S.2d 99, 269 N.E.2d 812 (1971). (See, also, Tornambe v. Tornambe, Supra.) The trial justice was well aware that this was a case where the 'lesser burden' rule could be applied, as indicated by his charge and in his opinion rendered in granting the motion to dismiss but, as noted by him: 'The difficulty with the present state of the plaintiff's proof respecting his freedom from contributory negligence is not that he has offered less proof than is normally required, but that he has offered no proof. The court is forced to this conclusion after carefully scrutinizing the available evidence on the subject * * *.'

The accident occurred when the vehicle, driven by the plaintiff at a high rate of speed on the thruway, struck a tractor trailer proceeding lawfully and at a low rate of speed while making a U turn into plaintiff's lane of travel. The accident occurred in the daytime, and although there was testimony that it was sprinkling and that the road was damp, undisputably, the tractor trailer with its flashing lights and a flagman, with a red and white vest and waving a red flag, were visible for more than 1500 feet as plaintiff approached the point of collision. There is no evidence by way of skidmarks or otherwise that the plaintiff at any time applied his brakes or attempted to turn to one side to avoid the collision. The fact is that plaintiff's convertible, on hitting the trailer near the rear, careened a distance of almost 30 feet, burst into flames, and was totally demolished. There is no proof that the plaintiff, driving at a high rate of speed, was maintaining a lookout or exercised any care to avoid the collision.

Accordingly, the plaintiff failed to 'introduce evidence to make out a prima facie case' and thus, this was not a case where there was presented 'an opportunity to apply the lesser burden of persuasion'. (See Schechter v. Klanfer, Supra.) Certainly, plaintiff's freedom from contributory negligence was not established by proof of the mere happening of the accident and of the negligence of defendants. (See Weston v. City of Troy, Supra; Tornambe v. Tornambe, Supra.) Although it is true that, on the basis of the record, one may imagine circumstances under which it could be found that plaintiff exercised due care, the plaintiff's case may not be based on speculation.

That the trial court's determination to dismiss this action for failure of proof was proper is supported by the following decisions sustaining dismissals of suits by amnesiac plaintiffs: Bongiorno v. Wechter Fuel Oil Co., 26 N.Y.2d 950, 952, 310 N.Y.S.2d 508, 258 N.E.2d 921, affg. 30 A.D.2d 858, 293 N.Y.S.2d 714, where the plaintiff, in the Court of Appeals, argued that 'particularly in view of the fact that he had lost his memory as a result of the accident, the evidence was sufficient to require submission to the jury of the issues * * *' including the issue 'as to whether he himself was contributorily negligent'; Nicholas v. N.Y. State Elec. & Gas. Corp., 283 App.Div. 291, 300, 127 N.Y.S.2d 490, affd. 308 N.Y. 930, 127 N.E.2d 84, where the court said that the plaintiff 'may not escape that burden (of establishing freedom from contributory negligence) by saying he could not recall where he was at the time of his injury.' (See, also, Tornambe v. Toramble (Supra, 12 N.Y.2d p. 1003, 239 N.Y.S.2d p. 131, 189 N.E.2d p. 625), where plaintiff argued in the Court of Appeals that 'the absence of direct proof on that issue (contributory negligence) should be excused because of plaintiff's senility'; Ender v. Kehoe, 29 A.D.2d 1044, 289 N.Y.S.2d 869; Karonis v. Palmietto, 281 App.Div. 687, 117 N.Y.S.2d 353, affd. 305 N.Y. 898, 114 N.E.2d 433; Davis v. Rogers Fuel Corp., 284 App.Div. 1024, 134 N.Y.S.2d 849; Hansen v. City of New York, 274 App.Div. 196, 80 N.Y.S.2d 249, affd. 299 N.Y. 136, 85 N.E.2d 905.)

The decisions relied upon by the dissenting justices are clearly distinguishable on the facts. In Schechter v. Klanfer (supra), the plaintiff did call an eyewitness and, as pointed out by Judge Breitel, the co-plaintiff did introduce evidence to make out a prima facie case, so that there was 'an opportunity to apply the lesser burden of persuasion.' In Townley v. Bagby Transfer Co., 19 A.D.2d 757, 241 N.Y.S.2d 492, the accident occurred in the nighttime and there was evidence that the plaintiff's car was not 'going very fast' and that he could have been confused by the lights on the tractor trailer with which he collided and other lights in the vicinity.

The judgment entered upon the trial court's determination dismissing the plaintiff's complaint should be affirmed with costs and disbursements.

Judgment, Supreme Court, New York County, entered on July 8, 1970, affirmed. Respondents shall recover of appellant $50 costs and disbursements of this appeal.

All concur except NUNEZ and KUPFERMAN, JJ., who dissent in an opinion by NUNEZ, J.

NUNEZ, Justice (dissenting).

Plaintiff, while driving his automobile westbound on the New York State Thruway, collided with a tractor-trailer which was straddling the roadway in the process of making a U-turn. The accident occurred at 8:00 a.m. on the morning of September 22, 1966. Plaintiff had left his home in New York City at 2:30 a.m. to keep a 10:00 o'clock appointment in Syracuse. The point of accident was 233.6 miles from the New York City line and the distance from New York City to Syracuse is 283 miles. The speed limit at the place of the accident was 65 miles per hour. The westbound portion of the Thruway consisted of two lanes of traffic, each 12 feet wide and a right shoulder of about 6 1/2 feet. The distance from the front of the tractor-trailer to the rear of a low-boy attached to it was approximately 45 feet. The plaintiff was alone in his automobile. The only witnesses present at the scene of the accident were the plaintiff, defendant William Robb, the driver of the tractor-trailer and defendant Hurley McDougall, employed by defendant County Asphalt, Inc., as a flagman.

Robb testified that he pulled the tractor-trailer to the far right-hand shoulder of the westbound lane and...