Opinion
March 15, 1971
In a negligence action to recover damages for wrongful death and conscious pain and suffering, etc., defendants Metropolitan Tobacco Company, Inc., and Hugo Raunecker appeal from so much of a judgment of the Supreme Court, Queens County, entered May 28, 1969, as is against them and in favor of plaintiffs upon jury verdicts. Judgment reversed insofar as appealed from, on the law and the facts, with costs, and complaint dismissed as to defendants Metropolitan Tobacco Co., Inc., and Hugo Raunecker. In our opinion, no finding of negligence against the appealing defendants can be predicated on the credible evidence in this case. Aside from the testimony of defendant Kesten, necessarily rejected by the jury in its verdict against her, all the other evidence established that the Kesten car had crossed into defendant Raunecker's northbound lane. The three drivers involved were in agreement that their cars had been proceeding between 15 and 20 miles per hour. Both Kesten and Raunecker testified that their first sighting of each other's vehicles occurred when they were about 15 feet apart. Both agreed that the impact was almost instantaneous. Raunecker testified that he did not brake his car. Miss Kesten testified that she tried to brake but did not know whether she completed that act. Given the speeds of, and the distance between, the vehicles indicated above, the two cars were closing a gap of 15 feet at a rate of almost 60 feet per second. Under the circumstances, it is virtually impossible to offer a means by which Raunecker could have avoided the collision ( Breckir v. Lewis, 21 A.D.2d 546, 549; affd. 15 N.Y.2d 1027; Palmer v. Palmer, 31 A.D.2d 876 -877; Campbell v. Towber, 26 A.D.2d 628). We see no evidence in this record of any act or omission on the part of Raunecker, confronted with a sudden emergency, which established his negligence or from which such negligence can be reasonably inferred. We also think the trial court (a) was correct in dismissing the defense of workmen's compensation; (b) abused its discretion in refusing a defense motion to reopen the case in order to produce a witness as to the position of the cars on the roadway after the accident; (c) erred in permitting Officer Lombard to read from a document not in evidence; and (d) erred in instructing the jury that it could find that both the Raunecker and Kesten cars had crossed the center line or that Raunecker may have made a sudden stop. Martuscello, Christ and Brennan, JJ., concur; Shapiro, J., concurs in reversal of the judgment insofar as appealed from, but otherwise dissents and votes to grant a new trial as between plaintiffs and the appealing defendants, with the following memorandum: The deceased was a passenger in the car driven by defendant Raunecker and owned by defendant Metropolitan Tobacco Company, Inc. That car was in a collision with the car driven by defendant Kesten. The jury returned a verdict against all those defendants and also against defendant Rampersad, the driver of a third car, but only Metropolitan and Raunecker appealed from the judgment in favor of plaintiffs. I am in accord with the determination of the majority that the jury's finding of negligence on the part of the appealing defendants is against the weight of the credible evidence and that there should therefore be a reversal of the judgment insofar as it was entered against them on that finding. I do not agree with the majority's conclusion that plaintiffs' complaint must be dismissed because there is "no evidence in this record of any act of omission on the part of Raunecker * * * which established his negligence or from which such negligence can be reasonably inferred." Kesten testified that just past 104th Avenue she saw the Raunecker car come from the northbound lane, starting toward her, that she saw it coming across the center divider, and that at the moment of impact her car was in the southbound lane and the bumper of the Raunecker car was over the solid line on her side of the road. That testimony may not be sloughed off merely because we believe that it is contrary to the weight of all the other evidence in the case. It creates an issue of fact negating our right to dismiss the complaint as a matter of law ( Carter v. Castle Elec. Contr. Co. 26 A.D.2d 83; African Metals Corp. v. Bullowa 288 N.Y. 78, 81; Blum v. Fresh Grown Preserve Corp., 292 N.Y. 241, 245; Wessel v. Krop, 30 A.D.2d 764; Prince v. City of New York, 21 A.D.2d 668). Rabin, P.J., not voting.