Opinion
December 15, 1970
Judgment, Supreme Court, Bronx County, in this action for personal injury in favor of the defendants Velazquez affirmed, and the order entered April 14, 1970, setting aside the verdict against defendant Poirier McLane, and denying its motion to dismiss the complaint, modified, on the law to the extent of granting the motion to dismiss the complaint, and as so modified affirmed, without costs and without disbursements. The negligence of the defendants Velazquez and the contributory negligence of the plaintiff were questions of fact which were put to the jury without exceptions and the result reached should not be disturbed. It is settled that a jury verdict in favor of defendant may not be set aside unless it plainly appears that the evidence so preponderates in favor of the plaintiff that the verdict for the defendant could not have been reached on any fair interpretation of the evidence. ( Marton v. McCasland, 16 A.D.2d 781, 782.) The defendant Poirier McLane Corp. at the time of the accident was engaged in the construction of an interchange between the Cross-Bronx Expressway and the Major Deegan Expressway. This work site was separate and apart from what is described as the detour. The accident occurred about 7:40 A.M. on September 24, 1963 on the Major Deegan Expressway detour south of the Alexander Hamilton Bridge in Bronx, New York. Another construction company, American Bridge Company, had an operation in progress some distance away and it was separated from Poirier McLane's work by railroad tracks and other obstructions. At the time of the accident, the Major Deegan Expressway detour was a two-way, north-south road with three lanes of traffic in either direction. Running down the center of the roadway was a barrier erected by Poirier McLane. This was a barrier to prevent cars out of control going into the opposite lanes of travel. There were two other parallel barricades on the west and east sides of this detour. These barricades were also constructed by Poirier McLane. There were three openings about three to five feet wide, without doors, in each of the barricades at a point approximately the site of the accident. The purpose of the openings in the barriers was to allow the contractors to move material and equipment from one side of the road to the other. There is evidence that some men, otherwise unidentified, would at times use these openings for the purpose of entering the job. The record establishes that there were no road markings, lights, stop signs, flagmen, traffic control personnel or any other indication in the vicinity of the openings to indicate a cross-walk across the detour highway at or near the site of the occurrence. Whenever any equipment was to be moved across this portion of the highway, the practice was to designate a flagman to warn oncoming traffic. A flagman was used only during working hours after 8:00 A.M. when the construction was in progress. The plaintiff was on his way to obtain a position with the American Bridge Company. American Bridge Company had erected a pedestrian bridge some 900 feet south of the point of the accident, which employees of American Bridge used to go to and from their work site. Plaintiff testified he was told by some unidentified person in his union hall to report to American Bridge for work. Plaintiff chose to take the shortcut across the highway which required negotiating the northbound and southbound traffic lanes, the work site of the appellant and railroad tracks to reach the site of American Bridge Company. There was available to plaintiff a safe approach on Sedgwick Avenue, adjacent to the detour route, proceeding southerly to Depot Place Bridge, a city bridge, crossing the Major Deegan highway, and along Depot Place to the site of the American Bridge Company. In addition, there was a foot bridge erected by the Bridge Company over the railroad tracks leading to the site. Plaintiff exposed himself to a known danger where he had a choice of a safe approach. ( Utica Mut. Ins. Co. v. Amsterdam Color Works, 284 App. Div. 376, 379, affd. 308 N.Y. 816.) We can perceive no actionable negligence upon the part of the defendant-appellant and plaintiff was contributorily negligent. Consequently the complaint should be dismissed. In the event we did not dismiss the complaint, we would affirm the order entered by the Trial Judge setting aside the verdict on the ground that it was contrary to the weight of the evidence.
The Trial Justice submitted the issues to the jury in a comprehensive and flawless charge. Implicit in its verdict against defendant Poirier McLane Corp. were findings of negligence in failing to place warning signs indicating that the highway was used for pedestrian traffic at an opening created by it. Likewise, by its verdict in his favor, the jury absolved plaintiff of contributory negligence. There is ample evidence to sustain the verdict. That Poirier McLane created the openings in the barricade is not denied; that workmen used them to get to and from work continuously each working day since the barricades were constructed was established by the uncontradicted testimony of defendant's Field Engineer, Mr. Robert Ryan. Whether or not the contractor created a dangerous condition on the public highway causally related to the plaintiff's accident and resulting injury was a question of fact for the jury's determination. (See O'Neil v. City of Port Jervis, 253 N.Y. 423; Jarvis v. Long Is. R.R. Co., 50 Misc.2d 769, affd. 25 A.D.2d 617, mot. for lv. to app. den. 17 N.Y.2d 424; McDevitt v. State of New York, 1 N.Y.2d 540.) I vote to modify the judgment appealed from by reinstating the verdict in plaintiff's favor against Poirier McLane Corp. and to otherwise affirm.