Whitely v. Lobue
| Citation | 300 N.Y.S.2d 907,59 Misc.2d 755 |
| Parties | Roberta WHITELY and Edward Whitely, individually and as Natural Guardians of William Whitely and Edward Whitely, Jr., Plaintiffs, v. Andrew LOBUE and Rose Lobue, Defendants. |
| Decision Date | 29 June 1967 |
| Court | New York Supreme Court |
The plaintiffs urge that in this action to recover damages for personal injuries there no longer remain any issues concerning negligence and contributory negligence and that they are entitled to summary judgment and a trial solely on the question of damages. Courts have been reluctant to grant summary judgment in personal injury actions and usually there is one issue or another which requires a trial.
On this motion we have considered the affidavits of the respective parties; the testimony of the defendant driver at a hearing held in the Department of Motor Vehicles; the examinations before trial of the two drivers; the defendant driver's motor vehicle report; and the police accident report. It appears that all circumstances of the occurrence have been explored and every version of what took place has already been supplied.
At about noon on the 5th day of June, 1965 the plaintiff Edward Whitely was driving in an easterly direction and the defendant driver, Rose Lobue, in a westerly direction on Northern State Parkway. At the point where the accident occurred there were four lanes, two running in each direction and opposing traffic was separated by an eight foot grass divider contained within curbs. Immediately before the accident each of the drivers was in the lane closer to the divider. Mrs. Lobue was alone; Mr. Whitely's two sons, then in their sixth and seventh years were with him on their way to visit Mr. Whitely's mother. It was a fine day. Near the point of the accident, east of the Hicks Road Bridge, the parkway was level and straight. Each of the cars was traveling at a speed of at least 40 miles per hour and traffic was moderately heavy. Mr. Whitely first saw the defendant's car beyond the Hicks Road Bridge or overpass. He says that at that time it was approximately 150 to 200 feet away; that he saw it again when it had passed through the overpass and then when he was 50 feet from the defendant's vehicle, still traveling at approximately 40 miles per hour, he observed the front wheels of defendant's automobile turn toward the left, cross the curb and the divider. He relates that as he looked to his right there were cars in that lane and that then he applied his brake and immediately the two left front portions of the vehicles struck. The plaintiff operator stated to the police officer who reported the accident that he 'could not move to right because of traffic and was struck head on by car #2.' The police officer who made the accident report states that the front end of each of the cars was demolished and in a sketch included in his report he indicates both cars wholly in the eastbound lane. This is confirmed by photographs in which Mrs. Lobue identified her motor vehicle in an examination before trial. On the day following the accident and while still in the hospital she made a Motor Vehicle Report in which she reported the cause of the accident as 'Unknown'.
At the hearing before the Referee in the Department of Motor Vehicles on November 3, 1965, she recited that she The Referee then continued his questions and she made answer as follows:
'Q You say that you were too close to the car, the car going in the opposite direction?
A In front of me.
Q The car directly ahead of you going in the same direction?
A Yes.
Q How close to it were you?
A Close enough for me to put the brakes on fast. I couldn't tell how many feet still, it was close enough. I realized I couldn't stop, I had to stop immediately and I had to put the brakes on with the the (sic) body lurched forward and I hit the glass and it probably stunned me because I recall going over--and as I said it was a bright sunny day and it seemed as though it was getting dark. For me to visualize darkness I must have been passing out.'
'Q This car directly ahead of you, Mrs. La Bue (sic), was that car moving ahead?
A It was moving, but had slowed down.
Q Had you been following this other vehicle for any length of time?
A No, not all the--I turned away. How long does it take--
Q Why did you turn away?
A When I drive I sometimes take my head away--
Q Not if you are that close to another vehicle.
A No, at the time--before I turned my head it was probably not that close. He was not on top of me. But going at 40 m.p.h. I couldn't stop, yet I didn't hit him.'
On her examination before trial held December 19, 1966, Mrs. Lobue had lost almost all recollection of the accident except for the fact that there had been one. She confirmed her speed as having been at least 40 miles per hour. When she was shown a photograph of the two cars following the accident (marked for identification upon her examination before trial) at one point failed to recognize her car (p. 13, line 22), though shortly thereafter she did (p. 16, line 7).
When questions were put to her concerning details of the accident and her earlier testimony before the Referee at the Department of Motor Vehicles, her answers were either that she did not remember or that she did not know. Thus she not only did not recall the details of the accident but did not remember her testimony at the hearing.
From the foregoing the conclusion is inescapable that the defendant driver was guilty of negligence in turning her attention from the roadway, and that act was the proximate cause for the events which followed.
However, we are still left with the inquiry 'as to whether reasonable precautions were used by plaintiff to avoid the accident' (Blixton v. MacNary, 23 A.D.2d 573, 574, 256 N.Y.S.2d 362, 363) and a negative answer would defeat his application, even if not those of the six and seven year olds who were passengers.
At the moment when the left front wheel of the defendant driver's vehicle struck the mall, the cars were traveling at a combined speed of not less than 80 miles per hour and at...
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