Opinion
February 26, 1962
In consolidated negligence actions, the parties cross-appeal as follows from a judgment of the Supreme Court, Kings County, entered May 6, 1960 after a jury trial, which is: (a) in favor of all the plaintiffs against defendant City of New York; (b) in favor of defendants Socony-Mobil Oil Co., Inc., and Kornrich against all the plaintiffs; (c) in favor of Peter Yanul, as defendant, against the plaintiffs Sophie Yanul and Jennie M. Yanul; and (d) in favor of defendant city against defendant Welsbach Corp., on the city's cross claim, for the total sums awarded to the plaintiffs against the city: (1) Defendant Welsbach Corp. appeals, as limited by its brief, from so much of the judgment as is in favor of plaintiffs against the defendant city, and as is in favor of defendant city against it, on the city's cross claim; (2) defendant city appeals from so much of the judgment as is in favor of the plaintiffs against it; (3) plaintiffs Sophie Yanul and Jennie M. Yanul appeal from so much of the judgment as is in favor of defendants Peter Yanul, Socony and Kornrich, against them; and (4) plaintiffs Peter Yanul and Mary Yanul appeal from so much of the judgment as is in favor of defendants Socony and Kornrich, against them. Judgment insofar as appealed from by each of the parties, affirmed, with one bill of costs to defendants Socony and Kornrich, payable by plaintiffs, and with one bill of costs to defendant city and the plaintiffs, payable by defendant Welsbach Corp. The accident occurred on June 2, 1956, at 9:30 in the morning, at the intersection of Morgan and Meeker Avenues in the Borough of Brooklyn. A truck, owned by defendant Socony and operated by defendant Kornrich, was in collision with an automobile, owned and operated by Peter Yanul, in which the other three plaintiffs were passengers. At the time, the truck was proceeding northerly on Morgan Avenue; the automobile was proceeding westerly on Meeker Avenue; and the traffic light at the intersection, while green for northbound traffic, was blank for westbound traffic. The defendant Welsbach was under contract with the city to inspect, maintain and service the traffic signals. Under the charge of the court, there was implicit in the jury's verdict a finding, supported by the evidence, that the defective traffic light was the proximate cause of the accident. In such circumstances, while in our opinion it was error for the court to have charged that the vehicle on the right had the right of way (cf. Ward v. Clark, 232 N.Y. 195, 198; Plantz v. Greiner, 232 App. Div. 73, 75), nevertheless the reversal of the judgment is not required by reason of such error. That portion of the charge was given in connection with Peter and Mary Yanul's right to recover against defendants Socony and Kornrich, and neither Welsbach nor the city was prejudiced thereby, particularly since the question of the contributory negligence of Peter Yanul was submitted to the jury both in respect of his cause of action against Socony and Kornrich, and his cause of action against the city (Civ. Prac. Act, § 106). Nor was reversible error committed in the admission, over objection, of testimony concerning repairs to the traffic light made more than a month before the accident, in view of the prior receipt of similar testimony without objection (cf. St. John's Coll. v. AEtna Ind. Co., 135 App. Div. 480, 483, mod. on other grounds 201 N.Y. 335; McGuire v. Bonat, 246 App. Div. 547). The trial court, to whom the issues on the city's cross claim against Welsbach were submitted for decision, properly found that the city was entitled to judgment over against Welsbach. The latter, under its contracts with the city, was under a duty to inspect and service the traffic lights; hence, as to each other, these parties were not in pari delicto (cf. Tipaldi v. Riverside Mem. Chapel, 273 App. Div. 414, 418-419, 420, affd. 298 N.Y. 686; McFall v. Compagnie Maritime Belge, 304 N.Y. 314, 329-330; Burke v. City of New York, 2 N.Y.2d 90, 94). Beldock, P.J., Brennan, Hill, Rabin and Hopkins, JJ., concur.