Massey v. Matza , 201 N.Y.S.2d 715 ( 1960 )

McNally, J.

In an action to recover damages for personal injuries and loss of services of the plaintiff wife, defendant appeals from a judgment in favor of the plaintiffs after a non-jury trial. The contributory negligence of plaintiff wife precludes a recovery herein.

The automobile operated by plaintiff wife on April 9, 1957, at or about 1:15 a.m., on Park Avenue between 114th and 115th Streets in the Borough of Manhattan, City of New York, collided with the rear of the parked truck of the defendant. At the site of the occurrence Park Avenue is divided by an elevated railroad right of way. The easterly portion of the roadway is for northbound traffic and the westerly portion thereof is for southbound traffic. Defendant’s truck was parked on the westerly side of the northbound road adjacent to its westerly curb. Along the easterly sidewalk of the northbound roadway were illuminated electric lights suspended from metal electric light poles.

Prior to the occurrence it had been raining with varying intensity. The recorded hourly precipitation on April 9, 1957 at Central Park, New York City, of the Weather Bureau of the United States Department of Commerce, was a trace of rain between 1:00 and 2:00 a.m., which interval includes the time of the occurrence herein. A trace of rain is an amount too small to measure.

Plaintiff wife testified the accident occurred at 1:15 a.m. ; plaintiffs’ bill of particulars alleges 1:30 a.m. ; the hospital entry shows “ At 1:35 a.m. patient was found by police after she hit a parked car”; plaintiffs’ brief states the accident occurred about 1:15 a.m.; and defendant’s brief states the accident occurred at 1:15 or 1:30 a.m. There is no contention that the accident occurred other than between 1:00 and 2:00 a.m.

Plaintiff wife testified the downpour had increased immediately prior to the impact, whereas plaintiff’s sole eyewitness testified that it was merely drizzling at the time. The undisputed testimony is that plaintiff’s automobile was proceeding with bright lights and that the windshield wipers were functioning.

Plaintiff wife testified as follows: “ As I started ahead the downpour became more so, so that it was very, very difficult to see.” If the downpour was of such intensity as to temporarily obscure the vision of the operator, she should have taken greater caution, and, if necessary, pulled over to the easterly or right-hand curb and awaited the abatement of the downpour. “A person, whose power of vision is temporarily obstructed by some supervening condition, should take the greater care and should, if it be possible, await its passing away. If he neglects to proceed cautiously, he must accept the consequences of his undue precipitation.” (Piper v. New York Cent. & Hudson Riv. R. R. Co., 156 N. Y. 224, 230; Heaney v. Long Is. R. R. Co., 112 N. Y. 122, 128; Hilsenbeck v. Guhring, 131 N. Y. 674, 676; Lorenz v. Tisdale, 127 App. Div. 433, 434.)

If, as testified by plaintiff’s sole eyewitness, it was only drizzling at the time of the occurrence, which testimony is borne out by the Weather Bureau report, and he had no difficulty observing defendant’s parked truck, then the plaintiff wife is chargeable with what she would have observed had she looked in the direction she was proceeding. Few principles of law are clearer than the principle which stamps conduct similar to that of the plaintiff wife’s contributory negligence.

In Axelrod v. Krupinski (193 Misc, 1011) defendant’s stalled car was located on the southbound roadway of the West Side Express Highway in the City of New York. Plaintiff, operating his automobile, was proceeding southerly in the extreme right-hand lane. The car ahead of the plaintiff’s swerved to the left. Thereupon defendant’s car came into view of the plaintiff. He swerved to the left and applied his brakes. Nevertheless, plaintiff’s car collided with the defendant’s. The trial court found the defendant negligent in failing to take measures to warn southbound traffic of his immobilized car, and that plaintiff was free of contributory negligence. The Appellate Division (278 App. Div. 934) found the plaintiff guilty of contributory negligence and dismissed the complaint. The Court of Appeals affirmed (303 N. Y. 738). The evidence of this plaintiff’s contributory negligence is far more compelling than in Axelrod since here there was no moving vehicle between the defendant’s" and the plaintiffs’ motor vehicles. (See, also, French v. New York Rys. Corp., 255 N. Y. 558; Wood v. Pace, 250 N. Y. 556; Ford v. New York City Interborough Ry. Co., 236 N. Y. 346; Knapp v. Barrett, 216 N. Y. 226, 230; Dolfini v. Erie R. R. Co., 178 N. Y. 1, 4; Tosto v. Marra Bros., 275 App. Div. 686; Chiappone v. Greenebaum, 189 App. Div. 579.)

In either aspect of the case, that of the plaintiff wife or that presented by the sole eyewitness, the said plaintiff was guilty of contributory negligence. Moreover, the extensive damage to plaintiffs’ automobile, as evidenced by Exhibit D, suggests a rate of speed greatly in excess of that testified to by plaintiff wife. The evidence clearly indicates both parties were negligent; consequently, there can be no recovery.

Upon all the evidence, we find plaintiff wife was guilty of negligence contributing to the happening of the occurrence. In view of this finding, we are required by subdivision 2 of section 584 of the Civil Practice Act to grant the motion for judgment which the court below ought to have granted. (Calabria v. City & Suburban Homes Co., 5 A D 2d 983, affd. 5 N Y 2d 918; Leonard v. Frantz Co., 268 App. Div. 144; Bernardine v. City of New York, 268 App. Div. 444; 9 Carmody-Wait, New York Practice, § 177, p. 603.)

The judgment should be reversed, on the law and on the facts, and the complaint dismissed, without costs.