Ellsworth v. General Motors Corp. , 446 N.Y.S.2d 438 ( 1981 )

Appeals from judgments of the Supreme Court in favor of plaintiffs, entered August 18,1980 and August 20,1980 in St. Lawrence County, upon a verdict rendered at Trial Term (Ford, J.). Early on the afternoon of November 3, 1973, plaintiffs Betty Thrasher and Pearl Ellsworth left their respective homes in St. Lawrence County in Mrs. Ellsworth’s new 1973 Chevrolet Chevelle Malibu to shop and visit friends and relatives in and near the hamlet of Santa Clara in Franklin County. After dinner, following an afternoon and evening of socializing, they headed home with Mrs. Thrasher at the wheel. En route they stopped at the Starlight Inn, where, according to Mrs. Thrasher, she consumed a bottle of beer. While there, they encountered plaintiff DeForrest Ellsworth, the son of plaintiff Pearl Ellsworth. Mrs. Thrasher described DeForrest as being “really drunk”. Upon leaving the inn, DeForrest was placed in the rear seat of the car and he has no recollection of the relevant events preceding the accident. As they resumed their journey, Mrs. Thrasher was driving with Mrs. Ellsworth occupying the front passenger seat, and they proceeded along Route No. 11 until turning onto St. Lawrence County Highway No. 41. While proceeding on No. 41 Mrs. Thrasher negotiated a left turn and then was “going straight again” when, according to her testimony, the car seemed to drift to the left. The car proceeded across the left lane to the shoulder and continued on for a distance of approximately 171 feet. Her efforts to turn to the right succeeded at that point as she heard a snap or felt a giving in the steering mechanism, whereupon the vehicle turned abruptly to the right and moved on a distance of about 176 feet across the highway, along the right shoulder and across a grassy area until it came to a stop after striking a house. Mrs. Thrasher estimated her speed just prior to the incident as being between 40 and 50 miles per hour and did not recall whether she applied the brakes. There was some testimony as to brake and skid marks along the vehicle’s path. All three occupants suffered personal injuries, and actions therefor, as well as derivative actions, were commenced on their behalf against the General Motors Corporation (GM) grounded in negligence and strict products liability. After a joint trial of the issues, the jury found that the accident was caused by a defective steering mechanism and that GM was guilty of negligence in that it placed a defective vehicle in the stream of commerce. The jury also found that plaintiffs were free from contributory negligence. On appeal, GM contends that several errors were committed during the trial, each of which was of such serious dimension as to mandate reversal. Among the claimed errors was the court’s refusal to charge, despite defendant’s urging, subdivision (a) of section 1120 of the Vehicle and Traffic Law which, in relevant part, provides that a vehicle “shall be driven upon the right half of the roadway” (emphasis added). It is to be remembered that during the long trial the issues were vigorously and exhaustively contested. Plaintiffs, through their experts, sought to establish that a deficiency or deficiencies in the power steering mechanism caused the accident. Defendant, on the other hand, presented expert testimony to the contrary and contended that the accident was caused by the negligent operation of the vehicle. Distilled down for simplification, the real issue was whether the accident was caused by mechanical failure or driver error. In our view, the evidence in this case and the conflicting theories advanced mandated that subdivision (a) of section 1120 of the Vehicle and Traffic Law be charged specifically, or at least in language which approximated the meaning of that subdivision. The court’s charge on the subject of the driver’s duty of care was very general and referred to the reasonable care and prudent driver dictates only as they related to the driver’s duty of care when confronted with an emergency. The duty to keep to the right was not mentioned nor was there ever any indication given that negligence could be inferred from a failure to drive on the right-hand side of the road. In fact, in one of the court’s few references to any possible negligence on the part of the operator, by implication it confined any possible negligent conduct to plaintiff operator’s attempt to turn right 'so as to get back on the highway. Instructions that do not approximate the meaning of the Vehicle and Traffic Law provision and that give no indication that negligence may be inferred from the violation alone deprive a litigant of a substantial right accorded by law too grave to be overlooked (Coury v Safe Auto Sales, 32 NY2d 162, 164; Green v Downs, 27 NY2d 205). The mere recital of general rules respecting a driver’s duty of reasonable care is no fair substitute for the wording of the statutes (Schiffer v Korman, 40 AD2d 681). The charging of subdivision (a) of section 1120 of the Vehicle and Traffic Law and thorough instructions were mandated here particularly in view of the lack of explanation, in any manner, by plaintiffs’ experts for the “drifting to the left” theory advanced by the driver, and for the further reason that contributory negligence is a defense to both negligence and strict products liability claims 0Codling v Paglia, 32 NY2d 330, 343). In addition to the deficiency in the charge, we also conclude that error was committed by the trial court when, after admitting into evidence certain letters from defendant to the National Highway Traffic and Safety Administration (NHTSA) concerning customer complaints relating to the power steering mechanism, it refused to admit NHTSA’s closing memorandum which found “[n]o trend of lockup, binding or self-steering * * * in the Saginaw power steering gear assemblies. There is no basis for believing that such a trend did, in fact, exist or that one will develop in the future”. We reach no other issue. Judgments reversed, on the law, and the matter remitted for a new trial with costs to abide the event. Mahoney, P. J., Main and Yesawich, Jr., JJ., concur.