Poccia v. City of New York

Full title: EMILIO POCCIA, as Limited Administrator of the Estate of STEPHEN POCCIA…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 17, 1951

279 App. Div. 761 (N.Y. App. Div. 1951)

Opinion

December 17, 1951.

Action to recover damages for wrongful death. The complaint alleges that respondent's intestate, an infant, caught his foot in a hole in the pavement adjoining appellant's railroad tracks on McDonald Avenue, in Brooklyn, and that while so caught he was struck by an automobile owned and operated by defendant Minegero along and upon the car tracks, inflicting the injuries from which the infant died. The complaint also alleges that appellant was negligent in the maintenance of the railroad tracks and the highway and that defendant Minegero was negligent in the operation of his automobile. The jury rendered a verdict for $20,000 in favor of respondent against appellant and in favor of defendant Minegero against respondent. The city appeals from the judgment entered on the verdict. Judgment, insofar as it is in favor of respondent against appellant, reversed on the facts and a new trial granted, with costs to appellant to abide the event, unless within twenty days after the entry of the order hereon respondent stipulate to reduce the amount of the verdict to $10,726, in which event the judgment, as so reduced, is affirmed, without costs. In our opinion the verdict was excessive.

Nolan, P.J., Carswell, Adel and Sneed, JJ., concur;

Wenzel, J., concurs in the reversal of the judgment, but otherwise dissents and votes to dismiss the complaint, with the following memorandum:

There was here no such propinquity of the negligence of the two defendants, that we may say that the negligence of the City of New York was the proximate cause of the accident. It was indeed the causa sine qua non but the negligence of the driver of the automobile which struck the boy was the causa causans of the accident. There was here no "unbroken connection between the act and the injury — a continuous operation." ( Trapp v. McClellan, 68 App. Div. 362, 368.) The only testimony connecting the city with this accident discloses that the automobile which struck the deceased infant was 300 feet from him as he tried to extricate his foot from the hole in the pavement. There appears no reason why the defendant driver of the car should not have seen him; others did, and he testified that he saw other boys on the scene. While the jury found in his favor, I find it significant that the jurymen inquired of the court whether they might apportion their verdict as between the defendants. The negligence of the driver of the car was an active, independent, intervening factor which brought about the happening of the accident.