31 A.D.2d 816 | N.Y. App. Div. | 1969
Appeal by plaintiff from a judgment .of *.the Supreme Court, Westchester County, dated March 18, 1968, in favor of defendants upon the dismissal of the complaint at the end of plaintiff’s case upon a jury trial. Judgment reversed, on the law, and new trial granted, with costs .to abide the event. No questions of fact were considered on this appeal. The action is by the administratrix of the estate of plaintiff’s deceased husband to recover damages for his conscious pain and suffering and for his wrongful death. At the trial conducted before a jury, the following essential facts were established: the deceased was intoxicated and had been observed by defendant Williams lying on the center lane of a 20-foot-wide two-lane highway, at approximately 4:00 a.m.; deceased’s elbows were on his knees and his head was bent down; Williams, who had been traveling in an easterly direction, turned his ear around and stopped parallel to the decedent; there was a conflict between Williams and defendant Fury as to whether Williams pulled completely off the highway and whether Williams opened the door on the driver’s side; Fury, who was proceeding in a westerly direction, passed Williams’ automobile and hit the decedent; and Fury stated that he did not see the decedent, but could see the center line, and his headlights enabled him to see for a distance of at least 200 feet. The County Medical Examiner testified that she did not know the actual time of the decedent’s death but his injuries were attributable to an accident. At the end of plaintiff’s case the court dismissed the complaint on the ground that it would be “ sheer guess as to whether * * *' [the deceased] was alive or dead before either of the defendants arrived on the scene.” In determining whether a prima facie case has been established in a wrongful death action, the Court of Appeals has said “ (1) that in a death case a plaintiff is not held to as high a degree of proof of the cause of action as where an injured plaintiff can himself describe the occurrence * * * [citing eases], and (2) that where the complaint has been dismissed, .the evidence adduced at the trial is to be considered in the aspect most favorable to plaintiff and plaintiff is entitled to the benefit of every favorable inference which can reasonably be drawn from the evidence * * * [citing eases] ” (Andersen v. Bee Line, 1 N Y 2d 169, 172). It has been recognized “ that the proof of the death of a person, known to be once living, is incumbent upon the party who asserts his death; for it is presumed that he still lives, until the contrary be proved ” (Duke of Cumberland v. Graves, 9 Barb. 595, 608, affd. 7 N. Y. 305; see Young v. Shulenberg, 165 N. Y. 385; Matter of Shupack, 158 Misc. 873). While the burden rests upon plaintiff to establish the essentials of her cause of action, she may be aided by presumptions; and, in an action where the alleged perpetrator of the wrong contends that the decedent was already dead when the accident occurred, the presumption against death runs in favor of the plaintiff (cf. Garrow v. State of New York, 268 App. Div. 534, affd. 294 N. Y. 741; 20 Carmody-Wait, N. Y. Prac., Action for Wrongful Death, § 76, p. 505). Nevertheless, the presumption is merely an inference that can be rebutted by evidence and, in our opinion, it was for the jury to determine if, under the circumstances, the presumption applied (Matter of Shupack, supra; Richardson, Evidence [9th ed.], §§ 54-56). We are also of the view that another question of fact exists .as to whether the doctrine of last clear chance is applicable (Button v. Hudson Riv. R. R. Co., 18 N. Y. 248; 41 N. Y. Jur., Negligence, §§ 72, 73). Intoxication in itself is not negligence as a matter of law but may be considered by the jury with the other facts in the case (Clarke v. City of New York, 295 N. Y. 861; Fagan v. Atlantic Coast Line R. R. Co., 220 N. Y. 301; Kenney v. Rhinelander, 28 App. Div. 246; Lynch
