Opinion
July 11, 1967
Appeal by defendants Mowle and Schultz Taxi, Inc., from an order of the Supreme Court which denied their motion for summary judgment dismissing as to them the complaint in a motor vehicle negligence action. The complaint alleges personal injuries sustained by plaintiff Maureen Halwick while she was a passenger in appellant Schultz' taxicab operated by appellant Mowle, which, according to Mowle's testimony on his pretrial examination, was stopped in obedience to a traffic light at the intersection of Albany Avenue and Foxhall Avenue in the city of Kingston, when it was struck in the rear by a truck owned by respondent Almike Metal Products, Inc., and operated by respondent Finch which had been following the taxicab as both cars proceeded northerly on Albany Avenue and approached the intersection. The defendant taxicab driver, according to his testimony, first observed the traffic light when it was "on caution" or "amber", whereupon he "applied the brakes and slowed down gradually, came to a stop", at a point 15 to 20 feet "from the corner"; and while stopped, the taxicab was struck in the left rear by the right front of defendant Almike's truck. Although testifying against her own interest, plaintiff on her examination before trial clearly demonstrated the taxicab driver's prudent and careful operation, stating that the taxicab "wasn't going fast" but at "a normal rate of speed" and, asked whether the stop was "sudden or was it gradual", replied, "No, just the way you are supposed to. How can you explain it? He just stopped." Defendant Finch, the operator of the Almike truck, on pretrial examination described the operation of the taxicab, which he was following. He said that the taxicab, before starting to slow down, was going "between 20 and 25" and "stopped just before [the light] turned red, when it was amber" and that when the light turned red, the truck was "maybe 50, 60 feet" from the intersection. The taxicab driver, he said, drove "normally" and "straight", without changing lanes, and was stopped at the time of the impact. This witness candidly described the operative facts of the accident, stating that the taxicab driver "was in the right-hand lane, and I was going to approach from the left-hand lane, and as I started to put my brakes on, the load of the truck sort of moved up into the seat; so I hit the brakes a little harder and swerved the truck over into his car. * * * When [the load] shifted, it nudged the seat which I was sitting in. I figured I wasn't going to stop fast enough. So I applied the brake a little harder, and that made me skid into him." The clear demonstration of the prudent operation of the taxicab is contested only by the affidavit of respondents Almike's and Finch's attorney who, on the basis of his own inspection of the scene of the accident and his own elaborate calculations predicated upon various estimates of distance, avers that the taxicab stopped in the intersection some distance beyond the white stop line on the Albany Avenue pavement. Inasmuch as the truck driver, according to his own testimony, was 50 to 60 feet from the red light when he observed the taxicab driver stopped in obedience thereto, respondents' attorney's conclusion seems irrelevant insofar as proximate cause is concerned, but may indicate that his client had that much additional space in which to attempt his unsuccessful maneuver. Respondents' preliminary objection might be valid were it not for the fact that the sworn testimony of the participants in, and witnesses to the accident affirmatively and finally demonstrates the absence of any negligence on the part of the appellants; thus removing the necessity for affidavits by appellants of merely negative and exclusory effect. Order reversed, on the law and the facts, with one bill of costs to appellants against respondents filing brief, and appellants' motion for summary judgment dismissing the complaint as to them granted, with costs of the action. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gibson, P.J.