Opinion
February 28, 1949.
The action by Ida Augusta Towne is to recover damages for personal injuries suffered, and by her husband, Jay Henry Towne, for personal injuries, property damage and loss of services, when an automobile owned and operated by plaintiff husband and in which his wife was a passenger, collided first with a tractor trailer owned by defendant Stukey and operated by defendant Hull, and then with a second tractor trailer owned by appellant McCarty. The accident occurred on a highway known as Route 5, in the town of Lenox, Madison County. Plaintiffs' vehicle was proceeding easterly in the eastbound lane when it collided with the Stukey tractor trailer, which was proceeding westerly and was so operated that its tractor extended about two feet onto the eastbound lane and into the path of plaintiffs' car. The McCarty tractor trailer was proceeding easterly behind plaintiffs' automobile and collided with the latter after its collision with the Stukey tractor. A verdict was rendered in favor of plaintiffs against the owner defendants and the operator of Stukey's tractor, and judgment was entered thereon. Defendant McCarty appeals. Judgment affirmed, with costs. The evidence presented a jury question on the issue of liability. The jury was free to find that appellant's operator was negligent in that, at the time of the first collision between plaintiffs' car and the Stukey trailer, he had ample time and space in which to avoid running into the rear of plaintiffs' car; or if he did not have ample time and space, he was not far enough behind plaintiffs to be in a position to avoid the accident; and, therefore, appellant's operator was not operating his truck in such a manner as not to endanger plaintiffs' life and property. The theory of emergency, which is the basis of appellant's argument, was not charged by the court in connection with appellant, and he took no exception to the charge, nor did he make any requests. Nor may the judgment be reversed because of the admission of Dr. Papa's testimony that, if there is no union as the result of a bone-grafting operation which must be performed, the leg of plaintiff husband may have to be amputated. The objection to Dr. Papa's testimony was made by counsel for another defendant and not by this appellant. Moreover, the same testimony by Dr. Child was not objected to by anyone and, therefore, the testimony of Dr. Papa was not prejudicial.
Carswell, Acting P.J., Johnston, Adel and MacCrate, JJ., concur;
The appellant was an unwilling actor in an unforeseen tragedy, which was not precipitated by any act of his. There was no pause in the chain of events which culminated in the final impact between plaintiffs' car and his truck. His driver was faced with an emergency. It is true that the appellant's counsel did not request the court to charge the jury on the law in regard to emergency, but the circumstances were such that the court could not properly charge the jury on the law basically involved in this case without doing so. The fact that the court so charged as to another defendant, but not as to appellant, magnified the prejudice to him.