72 A.D.2d 211 | N.Y. App. Div. | 1980
OPINION OF THE COURT
This appeal is from a judgment entered after a jury returned a verdict in favor of defendants in a personal injury action governed by New York’s comparative negligence rule.
On February 28, 1976, at about noon, decedent Francisca Franco, a 65-year-old woman, was crossing at the intersection of Tremont Avenue with Park Avenue, in The Bronx, when she was struck by a Volkswagen automobile operated by defendant Dennis L. Zingarelli and owned by defendant Christine M. Lesnak, who was then sitting beside him and is now his wife. The weather was clear and the roadway was dry. Zingarelli testified that while driving south on Park Avenue, he drove to the intersection and stopped behind one or two cars which were waiting for the light to change from red to green. After the light turned green and the vehicles in front of him moved, Zingarelli proceeded into and was almost through the intersection when he noticed the decedent, approximately 15 feet away, proceeding as a pedestrian across Park Avenue from west to east, but not in the crosswalk. She was coming from behind the first parked car south of the crosswalk when he first saw her. Traveling at about 15 miles an hour, and apparently or possibly in the act of shifting gears when he first saw decedent, Zingarelli swerved the Volkswagen to the left and applied the brakes. Contact was made with this pedestrian and the vehicle came to rest about a foot away. Police testimony placed the vehicle 26 feet away
The record discloses that the accident occurred on a Saturday, in a busy shopping area, which at the time of the incident exhibited normal Saturday crowds and traffic.
Defendant Lesnak, the owner-passenger of the vehicle which struck this elderly woman, testified that the Volkswagen was stopped on Park Avenue, behind two other vehicles which were waiting for the light to change to green. After an interval of some two or three minutes, the other cars proceeded into the intersection, the first turning left onto Tremont Avenue and the next going straight ahead. This latter automobile, however, stopped to let some pedestrians finish crossing. According to Lesnak, just as the "Volks” was almost through the intersection, the decedent stepped out from between two parked cars on the right side, south of the intersection. She first saw the decedent about 18 feet away and when decedent was one or two steps out of the space between the parked vehicles. Previously, the "Volks” had been traveling at 15 miles per hour and accelerating. Now it slowed down to about two miles an hour and swerved to the left. Nevertheless, decedent was struck and Lesnak heard glass break. Damage to the vehicle from the impact consisted of a broken windshield and a dented fender.
The defendants’ case basically consisted of testimony of one Dr. Regal and defendants Zingarelli and Lesnak (Mr. and Mrs.
Defendants’ expert witness, Dr. Regal, whose opinion was relevant to the nature of decedent’s eyesight at the time of the accident, responded to a hypothetical question by defense counsel:
"Q. Now, Doctor, given a person who has cataracts in both eyes, second degree, have you an opinion as to whether or not that person could see the color of a light 35 to 40 feet away from where they are standing * * *
"A. I would say moderately advanced cataract, the patient would not be able to see the color * * * Everything looks gray * * * They can see some light but cannot determine whether it’s green or the caution light or the red light.”
On cross-examination, Dr. Regal was constrained to admit that he did not know what degree and what type of cataracts the decedent actually had.
In view of the jury verdict for the defendants dismissing the complaint, it follows that the jury found as a fact on this record that defendants were totally free from any degree of negligence, however slight, and that the decedent was totally, not partially, negligent. It also logically follows that the testimony of the two witnesses to the accident, which clearly tended to demonstrate at least some degree of negligence on the defendant operator’s part, was disbelieved.
Plaintiff, feeling aggrieved by the result in light of this record which contains, inter alia, undisputed physical evidence tending to show a severe and powerful impact between the vehicle and the decedent, thus denoting a greater force at work than would most likely result from a slow moving small vehicle, raises a series of claimed errors which he contends deprives plaintiff of a fair trial and casts a pall of basic prejudicial error over the verdict.
The first error concerns the fact that the trial court permitted defendants’ counsel, over objection, to ask the police officer who had arrived at the accident scene, on cross-exami
The second error is the trial court’s charging the jury on "unavoidable accident” despite the paucity of proof of an "unavoidable accident.” Although plaintiffs counsel failed to object to this portion of the charge, we are asked in the interest of justice to reverse. Unavoidable accident may only be charged on appropriate facts, i.e., where the evidence could reasonably support a finding of unavoidable accident (Dorn v Butts, 46 Mise 2d 953). This record may not reasonably support such a finding due to the paucity of proof on this issue.
"Where there is no evidence that the operator of the motor vehicle was negligent in any way, or that he could have anticipated the resulting accident, the accident is deemed to have been an inevitable or unavoidable one for which no recovery may be had” (4A NY Jur, Automobiles and Other Vehicles, § 677). In effect, on this record, the jury was invited by virtue of this portion of the charge to engage in speculation. There was evidence tending to show negligence on the defendant operator’s part and evidence also relevant on the issue of his anticipation, or lack thereof, with respect to the resulting accident. Also, there was evidence tending to show negligence on the plaintiffs part. There was, however, a clear lack of evidence tending to show "unavoidable accident.”
The next claimed error consists of the ambiguous nature of the charge respecting plaintiffs (not the defendant
The fourth error claimed is the trial court’s charging the jury on "assumption of the risk” with respect to the decedent.
"The doctrine of assumption of risk lies in the maxim volenti non ñt injuria. Based as it is upon the plaintiffs assent to endure a situation created by the negligence of the defendant, it relieves the defendant from performing a duty which might otherwise be owing to the plaintiff. Where the plaintiff has assumed the risk of harm through the acts or omissions of the defendant, it matters not that the plaintiff was free from contributory negligence. In such case no breach of duty by the defendant is shown and consequently no negligence” (41 NY Jur, Negligence, § 49; emphasis supplied). Beyond peradventure the record herein does not admit of a charge on assumption of risk. As noted in the Comment to New York Pattern Jury Instructions relevant to assumption of risk: "A plaintiff to whom is owed a duty of reasonable care is not deemed to have assumed the risk unless he knows and fully appreciates the same * * * It is not sufficient that the risk was obvious or discoverable in the exercise of reasonable care and to charge assumption of risk in such a case is error. Failure to appreciate danger may constitute contributory negligence; it is not assumption of the risk, see 82 ALR2d 1218” (PJI 2:55, Comment).
The errors of the charge respecting unavoidable accident, assumption of the risk and violation of applicable sections of the city trafile regulations and the Vehicle and Traffic Law were so fundamental that this court would be remiss in not reversing and affording plaintiff a new trial. In effect, the trial court’s errors swept plaintiff out of court and frustrated application of the doctrine of comparative negligence.
The circumstances in this case are such that, had not improper evidence been permitted, and had not improper, inapplicable and confusing instructions been given on the law, an untrammeled jury could easily have found that there was comparative negligence. As already noted, neither the doc
Even assuming that each of the claimed errors (apart from the argument that the jury verdict is against the weight of the credible evidence) was not sufficient of itself to warrant a new trial, the cumulative effect of the errors is such that each obtained compelling prejudicial impact and the total effect deprived plaintiff of a fair trial.
Finally, the court’s charge embodying the Noseworthy rule was extremely succint: "It is well established that in a death action a plaintiff is not held to as high a degree of proof of the cause of action as when an injured plaintiff can himself or herself describe the occurrence upon which the action is based.” No expansion relevant to the fact that this rule permits greater latitude in drawing an inference of negligence was enunciated. Indeed, the unreasonableness of the verdict herein is only highlighted by the fact that the Noseworthy rule applied to the occurrence herein (Noseworthy v City of New York, 298 NY 76).
Accordingly, the judgment of the Supreme Court, Bronx County (Bloustein, J.), entered March 21, 1978, after a jury trial, in favor of the defendants should be reversed, on the law, with costs and disbursements, to abide the event, and the matter remanded for a new trial.
Bloom, J. P., Markewich and Ross, JJ., concur.
Judgment, Supreme Court, Bronx County, entered on March 21, 1978, reversed, on the law, and the matter remanded for a new trial, with $75 costs and disbursements of this appeal to abide the event.
. CPLR 1411 entitled "Damages recoverable when contributory negligence or assumption of risk is established,” effective September 1, 1975, provides: "In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.”
. The record contains testimony of eyewitnesses to the effect that the "Volks” was traveling at a speed of approximately 40 to 50 miles per hour at or just prior to the time of impact.