27 N.Y.2d 205 | NY | 1970
Lead Opinion
The plaintiff suing on the primary cause of action in this negligence case was injured when the defendants’ automobile backed into her as she stood upon the street. By a divided vote, the Appellate Division affirmed the judgment entered upon the verdict of no cause of action. The order of the Appellate Division must be reversed for error in the trial court’s instructions to the jury and in certain of its rulings upon evidence.
Plaintiff testified that she was standing behind defendants’ automobile, which was parked on the north side of 33rd Street, between 7th and 8th Avenues in New York City, waiting until a break in traffic should permit her to cross the street to Pennsylvania Station, when the defendant operator backed the vehicle suddenly and without warning, and struck her down. The defendant said that he did not see plaintiff until after the accident. No other witness viewed the actual collision.
There was substantial error in the court’s refusal to charge the provisions of subdivision (a) of section 1211 of the Vehicle and Traffic Law, providing: ‘ ‘ The driver of a vehicle shall not back the same unless such movement can be made with safety and without interfering with other traffic. ’ ’ This error respondents would have us excuse as nonprejudical, and on the premise that the court’s general exposition of the law of negligence and the reiteration of various rules defining, in generalities, the parties’ respective duties, in some way substituted for the precise and specific statutory provision which plaintiff properly requested be charged as bearing directly upon the facts to which the parties testified. Contrary to respondents ’ contention, however, the recital of general rules respecting the driver’s duty of reasonable care and his obligation to keep ‘‘a reasonably vigilant lookout for pedestrians ” and to give warning to them, ‘ •' if necessary ’ ’, was no fair substitute for the imperative ‘ ‘ shall not back ” appearing in the statute quoted. “ In cases where the law has detailed the duty resting on a reasonably prudent man, general instructions are inadequate. ’ ’ (Barnevo v. Munson S. S. Line, 239 N. Y. 486, 492.)
In the entire charge, indeed, there was neither any indication that defendants ’ car was being backed nor any reference to the
The error was compounded by an almost complete lack of specificity in the over-all charge; and, in particular, by the failure to discuss the evidence and to relate to it the principles of law that were charged, and to apply to each party’s version the pertinent statutory and decisional law.
We agree with the statement in New York Pattern Jury Instructions that the charge ‘ ‘ should be precise and specifically related to the claim of liability [citations]. Broad general statements of the law are inadequate [citations].” (1 NYPJI 2.) It has been well said that ‘ ‘ [i] it imperative to state and outline
There was error, too, in the reception of evidence. Counsel for plaintiff, while cross-examining defendant driver as to his assertion that he did not know that his car had struck plaintiff, exhibited to him his motor vehicle report, specifically directing his attention ‘ ‘ to the last three words ’ ’ in the paragraph describing the accident, the words being, ‘ ‘ pedestrian knocked down ”. The defendant conceded that he so reported. Counsel was not, however, permitted to read the three words to the jury; but on defendant’s redirect examination, nevertheless, the court, over plaintiff’s objection, received the exhibit as to the complete paragraph, which defendant’s counsel was permitted to read to the jury as follows: “ Description and apparent cause of accident : pedestrian stepped off curb, mid-block, from blind spot to right-rear of driver. Police officer’s instruction to vehicle to back up was interpreted by pedestrian as signal for her to cross street. Vehicle’s motion less than one mile per hour, but pedestrian knocked down.” The reception of this hearsay and self-serving evidence, whereby defendant conjectured plaintiff’s interpretation of a police officer’s alleged signal to defendant, was clear error. The obvious and intrinsic prejudice was significantly increased by reason of the fact that the court permitted defendant to recount the officer’s directions to him, while excluding plaintiff’s testimony as to the officer’s instructions to her. (See Barbagallo v. Americana Corp., 25 N Y 2d 655; Schabel v. Onseyga Realty Co., 233 App. Div. 208, 212; Richardson, Evidence [9th ed.], § 211.)
The order of the Appellate Division should be reversed and a new trial granted, with costs to abide the event.
. Thus, in the court’s main charge, covering 15 pages in the printed record, the only reference to the proof on the issue of liability was contained in one short sentence. That sentence and the instructions concerning it were as follows: “You remember Mrs. Green said she was standing still. You have to determine whether that’s true or otherwise. You have to determine which speed each was traveling at, because if each persisted in its course, the pedestrian will be struck by the automobile.”
Dissenting Opinion
I dissent and vote to affirm. The major questions present in this case are issues of fact decided adversely to appellant and. affirmed by the Appellate Division,
The plaintiff testified that she was standing in the road in the middle of the block behind defendants ’ parked car when it suddenly and without warning backed and struck her. Defendant Downs testified that, after being ordered to back up by a policeman, he glanced around, saw that the way was clear, looked in the rear-view mirror and began backing. After moving a short distance, he discovered a woman standing ahead of his car on the sidewalk with a shocked expression on her face and stopped the car. He had not realized that he had struck plaintiff. Consequently, there was a clear issue of fact presented as to how the accident occurred. Defendant’s testimony, if believed, could lead the jury to reasonably infer that plaintiff had negligently stepped into the path or the side of a moving vehicle.
Although it was error for the court to decline to charge section 1211 of the Vehicle and Traffic Law, the instructions given so closely approximate the meaning of that section as to make its omission harmless error.
The court first charged as to defendants’ duty of due care in watching for pedestrians and then emphasized that this duty was not changed by the fact that plaintiff was not in a crosswalk. The court finally specifically charged as to the driver’s duty in starting a stopped vehicle: “ I further charge you that the law provides that no person shall remove a vehicle that is stopped, standing, or parked, unless and until such movement can be made with reasonable safety.” The essential difference between the charge given and section 1211 is that section 1211 applies specifically to backing, rather than the general movement of a car. However, since it was conceded at the trial that the accident occurred while the defendant was backing his car, it seems evident that the charge given conveys precisely the same duties upon a motorist as section 1211. The duty of due care to look out for pedestrians is the same whether the car is moved forward or backward.
I agree that general instructions are inadequate when the law has detailed a specific duty (Barnevo v. Munson S.S. Line, 239
Moreover, this case is also distinguishable from Taggart v. Vogel (3 N Y 2d 58), wherein the failure to charge the applicable regulation was highly prejudicial since the applicable regulation there specified a duty of care not reiterated elsewhere in the charge. Additionally, section 1211 merely reiterates a common-law duty of due care, rather than creating any new standards of care as to the operator of a motor vehicle. Thus, I am of the opinion that the failure to charge this section was obviated by the charge given and, as such, the error was harmless.
Any error in the reception into evidence of defendant’s MV 104 accident report was also harmless. The part of that report which read “ pedestrian knocked down” was first introduced into evidence by the plaintiff in an apparent attempt to contradict defendant’s testimony that he did not know how the accident occurred. Plaintiff opened the door to the introduction of this report by first bringing it into issue himself. After this portion of the report had been read, the jury could have been left with the erroneous impression that the defendant had either admitted liability or had filed a report that was inconsistent with his trial testimony. Hence, the admission of the entire report was necessary to combat these impressions. Even if it was erroneous to admit that portion wherein the defendant interpreted plaintiff’s intentions, the error was obviated by the fact that defendant admitted that this statement was just surmise and speculation.
Consequently, I would affirm the judgment below.
Chief Judge Fuld and Judges Burke and Bergan concur with Judge Gibson; Judge Jasen dissents and votes to affirm in a separate opinion in which Judges Scileppi and Breitel concur.
Order reversed, etc.
