Opinion
May 10, 1999
Appeal from the Supreme Court, Nassau County (DeMaro, J.).
Ordered that the interlocutory judgment is affirmed, with one bill of costs payable by the appellants.
Undisputed evidence established that the defendant Jennifer Newman failed to yield the right of way to the defendant John F. Seery after stopping at a stop sign controlling traffic, in violation of Vehicle and Traffic Law § 1142 Veh. Traf.(a), and that her negligence was the proximate cause of the collision ( see, Rumanov v. Greenblatt, 251 A.D.2d 566; Ponticello v. Wilhelm, 249 A.D.2d 459; Bolta v. Lohan, 242 A.D.2d 356; Nunziata v. Birchell, 238 A.D.2d 555; Dellavecchia v. Zorros, 231 A.D.2d 549).
Contrary to the plaintiffs' and the Newmans' speculation that John F. Seery was contributorily negligent, the record is devoid of evidence that Mr. Seery was speeding or could have avoided the collision. Mr. Seery testified that he was traveling under the posted speed limit, and the only testimony to the contrary was a speed estimate made by Jennifer Newman, who, at the time of the accident, was 17 years old and had been driving by herself for less than one month. Further, Jennifer Newman admitted that she entered the intersection, despite the fact that her view was obstructed, After entering the intersection far enough to see the roadway, it was too late, as the Seery vehicle was two to three seconds from impact. Immediately prior to the collision, Mr. Seery reduced his speed, but could not have foreseen that the Newmans' vehicle would abruptly pull out in front of his vehicle ( see, Snow v. Howe, 253 A.D.2d 870; Maxwell v. Land-Saunders, 233 A.D.2d 303).
O'Brien, J. P., Joy and Krausman, JJ., concur.
Goldstein, J., concurs in part and dissents in part and votes to reverse the interlocutory judgment appealed from, on the law and the facts, to hold the defendant Jennifer Newman at fault in the happening of the accident, to reinstate the verdict in favor of the plaintiffs and against the defendants John F. Seery and Christine M. Seery, and to grant the defendants a new trial as to apportionment of fault, with the following memorandum: I agree with the majority that, as a matter of law, the defendant Jennifer Newman was negligent and her negligence was a proximate cause of the accident. However, in my opinion, the evidence adduced at trial established that the defendant John F. Seery's negligence contributed to the accident. Seery admitted that he saw Newman's vehicle from 20 to 25 feet away moving into his lane of travel. Acknowledging that he "wasn't sure what [Newman] was doing", he claims that he slowed down. However, he acknowledged that he made no attempt to stop until impact was inevitable, and did not sound his horn.
Seery claimed that he was traveling at about 20 miles per hour, about 10 miles per hour below the posted speed limit of 30 miles per hour ( see, Code of Vil. of Garden City § 193-1) because of wet weather conditions ( see, Vehicle and Traffic Law § 1180 Veh. Traf.[a]). However, according to Newman, when she saw Seery's vehicle, it was traveling at 40 to 50 miles per hour.
Upon impact, Newman's car spun around onto someone's front lawn. The whole side of Newman's vehicle "was completely smashed in". Testimony with respect to the condition of the vehicle was corroborated by photographic evidence.
Seery's failure to sound his horn and his belated attempt to stop to avoid a vehicle which he observed in his lane of travel constituted negligence which contributed to the accident ( see, Panariello v. Ballinger, 248 A.D.2d 452). An operator of a vehicle "`may not proceed recklessly into [an] intersection in disregard of a vehicle traveling on an intersecting street after he knows or has reason to know that the vehicle has entered or is about to enter the intersection without stopping'" ( Beechey v. DeSorbo, 53 A.D.2d 727, 728).
Moreover, the testimony that Seery was traveling at the speed of 40 to 50 miles per hour constituted competent evidence that he was traveling at an excessive rate of speed ( see, LoFaso v. Jamaica Buses, 63 A.D.2d 998; Beechey v. DeSorbo, supra, at 729). As this Court noted in LoFaso v. Jamaica Buses ( supra, at 998), "[a] layman is qualified to characterize the relative speed of a vehicle" and "any person of ordinary intelligence can tell when a [vehicle] is traveling `fast' or `slow' or variations thereof". Whether the witness has had a sufficient opportunity to observe the vehicle to estimate speed is also a matter which should be left to the trier of facts ( see, Beechey v. DeSorbo, supra, at 728). The jury could also infer that Seery's vehicle was traveling at an excessive rate of speed from the nature of the impact and the extent of the damage ( see, Patti v. Fenimore, 181 A.D.2d 869, 871). It was reasonable to infer that his speed was a proximate cause of the accident ( see, Olsen v. Baker, 112 A.D.2d 510).
Accordingly, the jury's verdict finding Seery to some degree at fault in the happening of the accident is supported by the weight of the credible evidence. The fact that Newman was also responsible does not absolve Seery of liability or warrant setting aside the verdict in favor of the plaintiff passengers against him ( see, Agustin v. Beth Israel Hosp., 185 A.D.2d 203).