Ramcharan v. Angelo , 410 N.Y.S.2d 860 ( 1978 )

In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from an order of the Supreme Court, Dutchess County, dated January 16, 1978, which denied their motion for summary judgment as to the issue of liability. Order affirmed, with $50 costs and disbursements. On August 15, 1976, at approximately 4:30 a.m., defendant Angelo, driving a car owned by defendant Friendly Pontiac Mazda, Inc., came around the "horse-shoe” or "hair-pin” shaped approach to the Mid-Hudson Bridge and hit the rear of plaintiffs’ car, which was stopped at a toll booth at the entrance to the bridge. Plaintiffs’ car was the third in line at the single lane which was open at the toll booths at that hour, and their car, after being hit, was propelled forward into the second car in line which, in turn, came into contact with the first car. At the time of the accident the weather was clear. After conducting an examination before trial of defendant Angelo in July, 1977, plaintiffs moved for summary judgment. In support of the motion they argued that the accident occurred solely because of Angelo’s negligent driving and, because their car was stationary when it was hit in the rear, there was, as a matter of law, no possible contributory negligence on their part. The factual context in which the accident arose and some statements made by Angelo at the examination before trial tend to support their argument. Angelo, who had spent the evening at a discotheque, stated that plaintiffs’ vehicle had been visible for 300 feet, yet he estimated that when his car made impact he was still traveling at 25 to 35 miles per hour. His car was in good condition and repair, with good brakes and good tires. He did not sound his horn or "slam on” his brakes prior to the impact, which was of a sufficient magnitude to leave him dazed. We hold, however, that Angelo’s testimony and the circumstances of the accident were sufficiently equivocal and ambiguous so as to preclude a court from concluding that no factual issues concerning Angelo’s negligence and plaintiffs’ freedom from contributory negligence exist. Although at one point Angelo testified that plaintiffs’ car was visible for 300 feet, at another point he stated that there was only 60 feet from the end of the "hair-pin” turn to the toll booth. Plaintiffs’ car was the third in line, and this backup reduced the distance between the end of the sharply curving road and the toll booth, thus giving Angelo less time to react. At 4:30 a.m. it was very dark and this limited Angelo’s visibility. Angelo was proceeding at 35 miles per hour as he left the curve and there is no claim in the record that this was an excessive speed. He then down shifted and applied light pressure to the brake. His foot was on the brake when the accident occurred. He also claimed that he did not see any light from plaintiffs’ car. Furthermore, he stated that prior to the impact he was momentarily distracted because a car going in the opposite direction beeped its horn. The impact was only moderate and, after the accident, plaintiff Peterkin emerged from his car and stated that nobody in the car had been hurt. Finally, Angelo had never pleaded guilty to any traffic violation as a result of the accident. Before a determination concerning liability can be made here, certain questions must be answered, and this can only occur after a trial. How far a distance was there from the point that Angelo, saw plaintiffs’ car to the point of impact? Did plaintiffs have their lights on? How severe was the impact? Would the sudden sounding of a horn from a car traveling in the opposite direction, under the facts and circumstances here present, sufficiently distract the attention of a reasonably prudent driver so as to make the collision nonactionable? What was the proximate cause of the accident? Was it Angelo’s rate of speed or his failure to promptly and properly brake his vehicle? Indeed, was the momentary distraction of the beeping horn its proximate cause? Did Angelo’s conduct under these circumstances conform to the standards required by law? These and other questions raise factual issues which must be resolved before the question of liability is determined. Andre v Pomeroy (35 NY2d 361) is distinguishable. In Andre> impact occurred during daylight hours, in heavy traffic, when the driver voluntarily surrendered her view of the road to look for a compact in her purse. In this case the driving conditions were different and Angelo stated that he lost sight of the car in front of him only because he reacted when another car sounded its horn. Even the majority opinion of the sharply divided Andre court noted (p 364) that summary judgment "is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (Millerton Agway Coop. v. Briarcliff Farms, 17 N Y 2d 57).” The majority in Andre then cited with approval paragraph 3212.03 of Weinstein-Korn-Miller (NY Civ Prac, vol 4, p 32-142.18), which states that summary judgment is proper "only in [those negligence] cases in which there is no conflict at all in the evidence, the defendant’s conduct fell far below any permissible standard of due care, and the plaintiff’s conduct either was not really involved (such as with a passenger) or was clearly of exemplary prudence in the circumstances.” This is simply not such a case. In concluding, it is important to note that we are in no way expressing any view as to the merits of the action. We are only saying that under these circumstances defendants are entitled to their day in court so that the factual issues raised may be resolved. Titone, Hawkins and O’Connor, JJ., concur.