Opinion
November 9, 1970
In an action to recover damages for wrongful death and for conscious pain and suffering, defendant Steve Brody, Inc., appeals (1) as limited by its brief, from so much of a judgment of the Supreme Court, Queens County, entered October 20, 1969 and amended on December 2, 1969 pursuant to the order mentioned hereinbelow, as is against it upon a jury verdict in favor of plaintiff and (2) from the order of the same court dated December 2, 1969, which granted plaintiff's motion to amend the original judgment with respect to the rates of interest to be applied to the amounts of the verdict. Judgment as amended reversed insofar as appealed from, on the law and the facts; as between plaintiff and defendant Steve Brody, Inc., action severed and new trial granted; and order reversed and plaintiff's motion to amend the original judgment denied as academic in view of the reversal of the judgment as to said defendant. Costs are awarded to cover the appeal from both the judgment and the order, to abide the event of the new trial. In our opinion, the findings implicit in the jury verdict that the traffic cones were negligently placed in the left lane of the westbound portion of the parkway by appellant's employees and that the presence of the cones there was the proximate cause of the accident were contrary to the weight of the evidence. There was no proof that the cones belonged to appellant, no proof that appellant had placed them in the parkway, and no proof that appellant had reason to place them there. On the contrary, the testimony of the State engineer supervising appellant's work indicated that on the day of the accident appellant was working east of the accident site. That would mean the cones were west of where appellant's employees were working and afforded no protection to these employees against westbound traffic. Further, according to the only eyewitness to testify, defendant Ferdionando Giovanniello, the accident occurred in the middle lane of the parkway, not the left lane where the cones were located. This witness, who was traveling in the center lane, testified that a vehicle which had been in the left lane cut in front of him and stopped when the vehicle in front of it (also in the center lane) stopped suddenly. The first vehicle had already passed the cones in the left lane when it stopped. That vehicle and the vehicle which had been in the left lane and this witness' vehicle all stopped without incident, but the latter was struck in the rear by the automobile of plaintiff's decedent. Under these facts, the position of the cones in the left lane cannot be said to have caused the accident. Munder, Acting P.J., Martuscello, Kleinfeld, Brennan and Benjamin, JJ., concur.