Wragge v. Lizza Asphalt Const. Co.

• Decision Date: 05 May 1966
• Docket Number: Nos. 1,2,s. 1
• Citation: 270 N.Y.S.2d 616,217 N.E.2d 666,17 N.Y.2d 313
• Court: New York Court of Appeals Court of Appeals
• Parties: , 217 N.E.2d 666 Katherine T. WRAGGE, as Administratrix of the Estate of Frederick J. Herholdt, Deceased, Appellant, v. LIZZA ASPHALT CONSTRUCTION CO., Inc., et al., Defendants, and Approved Sand& Gravel Corp. et al., Respondents. Anthony MARMORALE, as Administrator of the Estate of Susan Marmorale, Deceased, Appellant, v. Henry WRAGGE et al., Respondents, et al., Defendants. Action

Page 616

270 N.Y.S.2d 616

17 N.Y.2d 313, 217 N.E.2d 666

Katherine T. WRAGGE, as Administratrix of the Estate of Frederick J. Herholdt, Deceased, Appellant, v. LIZZA ASPHALT CONSTRUCTION CO., Inc., et al., Defendants, and Approved Sand& Gravel Corp. et al., Respondents.

Anthony MARMORALE, as Administrator of the Estate of Susan

Marmorale, Deceased, Appellant, v. Henry WRAGGE et al., Respondents, et al., Defendants.

Action Nos. 1, 2.

Court of Appeals of New York.

May 5, 1966.

Harold S. Meltzer, Mineola, for Katherine T. Wragge, appellant in action No. 1.

Sidney J. Loeb, New York City, for Anthony Marmorale, appellant in action No. 2.

William L. Shumate, New York City, for Approved Sand & Gravel Corp. and Fehr Sand & Gravel, Inc., respondents in both above-entitled actions.

Bernard Meyerson, Brooklyn, and Thomas V. Kingham, New York City, for Henry Wragge, respondent in action No. 2.

KEATING, Judge.

These two wrongful death actions, heard together, arise from an automobile accident on Route 106 in Oyster Bay in which plaintiffs' respective intestates were killed. At about 9:30 P.M. on January 19, 1960, Frederick J. Herholdt (18 years old) was driving a 1949 automobile in a southerly direction and was accompanied by Susan Marmorale (16 years old). While negotiating a curve to the left, the auto left the road and collided with a utility pole located off the right side (westerly side) of the road and both occupants were killed. There were no known witnesses to the accident.

Approaching the scene of the accident in a southerly direction one would come upon several commercial sites on the west side of the road immediately preceding the utility pole. First is that of Lizza Asphalt Construction Co., Inc., originally a defendant but found not negligent at trial and not involved in this appeal. Next is the site of defendants Fehr Sand & Gravel, Inc., and Approved Sand & Gravel Corp. (hereinafter referred to as Fehr). South of the Fehr property but before the pole was located a garage belonging to a fuel oil company. Proceeding south, the road is flat until about in front of Fehr's where it grades upward. Also, in front of the Fehr and Lizza premises the road pitches from west to east and there are catch basins on the east side but no drainage system on the west side of the road.

In connection with its operations Fehr maintained three sumps of wash water connected to each other by pipes. Sometime on the night of Friday, January 15, 1960, a broken pipe caused water from the sumps to overflow onto Lizza's property and then onto the surface of the road. Defendant's operations chief was notified by Lizza and on Sunday, January 17, according to his testimony, with the use of a loading machine he created a dyke and stopped the water from flowing.

The evidence showed that, at the time of the accident on January 19, the weather was fair and the travelled portion of the road was dry except for some ice and slush in front of the Fehr and Lizza premises. The southerly edge of the ice patch, as measured shortly after the accident, was about 120 feet from the pole. However, vehicles passing through the water spread it out on the road and tracked it closer to the pole so that there were additional ice spots between the main ice patch and the pole. The temperature, which was above freezing during the day, had fallen to 32 degrees at 8:00 P.M. and 31 degrees at the time of the accident. On the previous evening .34 inches of rain had fallen, and snow, some of which had melted on the day of the accident, was piled along the edges of the road.

Plaintiffs contended that defendants had negligently caused water to flow across the roadway, that the water had turned to ice, and that the ice had caused the auto to skid out of control into the utility pole thus causing the deaths of plaintiffs' intestates. Plaintiff Marmorale also contended that the auto was negligently operated and, therefore, sought recovery from Henry Wragge who owned the car and was the stepfather of the deceased driver. Defendants argued that plaintiffs had failed to show that the defendants had been neligent, that the ice was the result of their actions, or that there was any causal connection between the existence of the ice and the happening of the accident.

The jury returned verdicts in favor of plaintiffs Wragge and Marmorale against Fehr and in favor of defendant Wragge.

In reversing the judgments for the plaintiffs against Fehr, the court below agreed that there was evidence from which a jury could find that defendants' negligence caused the sump to overflow but concluded that plaintiffs' proof had failed on two points: it was neither a fair nor logical inference that the ice was caused by the overflow from the sump, nor was there evidence that the accident was caused by the ice. We disagree with these conclusions and hold that there was sufficient proof to warrant the jury's finding to the contrary.

Viewing the evidence in a light most favorable to plaintiffs, it appears that the court below erred when it concluded that the sump apparently had stopped flowing on Sunday, January 17, and that the ice was equally attributable to melting snow and the previous day's rain.

On the question of when the sump ceased to flow, defendant's operations chief, who had made the dyke to stop the flow on Sunday, testified that the water ceased flowing 15 to 20 minutes thereafter, that he was on the premises Monday morning and there was no water flowing from the sump nor from the Fehr or Lizza premises to the road, and similarly on Tuesday there was no leak from the sump and no water flowing along the Fehr or Lizza premises. Defendant's foreman also testified that on Monday and Tuesday there was no water flowing into the roadway from the Fehr or Lizza premises nor was there any further leakage from the sump. He also admitted, however, that water remained in the sumps after the leaks were allegedly stopped.

On plaintiffs' side, however, the owner of a business in East Norwich testified that he made six separate trips during the day of the accident between his business and his home in Oyster Bay and, each time he passed the scene of the accident, he observed the following: 'As I went through in the morning, I noticed quite a bit of water coming across this road in a certain area in front of one of these businesses and this water was actually running, the water wasn't just draining very slow or slightly, it was actually running to the extent when you drove through it with your car it actually made a lot of noise under the car, and you could hear the water hit the floor boards.'

The witness identified the business as Fehr and testified further that in the early evening the water was becoming slush and by the time of his last trip (8:45 P.M.) it was ice. He also stated that...