Bolte v. City of New York

Capozzoli, J. (dissenting).

The questions which are presented by this record are whether the evidence adduced at the trial satisfactorily establishes the negligence of the defendants, city and Broadway, in the maintenance of the traffic signal light at the northwest corner of the intersection and, if they were negligent, whether such negligence can legally be said to be a proximate cause of the accident resulting in the death of the decedent.

As to the negligence of the afore-mentioned defendants, there can be no question. Not only the witnesses, Bicca and Yohai, called by the plaintiff, but also the witness, Miss Scrimgeour, called by the defendant Broadway, are in complete agreement as to the defective condition of the light in question and also as to the approximate length of time that it had been in such condition. As a matter of fact, Miss Scrimgeour was particularly emphatic in her testimony concerning the defective condition of this light and testified, amongst other things, that, although she lived in the neighborhood and operated her automobile in that locality, she ivas, on occasions, confused by this light and the inference is fully warranted that she was not quite sure as to how she should react to it. At page 188 of the record Miss Scrimgeour testified as follows:

“ Q. You said that on occasion it was confusing; is that right! A. Yes.
Q. And those occasions, ivere they occasions when you traveled in the same direction that you traveled on this night, namely, in a northerly direction! A. No, actually they were on the occasions when I would come down the street, 183rd Street, and I had to use that light, the northwest corner light; then it was confusing to me.”

At page 189 this same witness testified as follows: “ Q. Now, when you were driving cast on 183rd Street and you were then *238confused by the light, being confused, did you giv'e the lights a little more attention as you came along because of your confusion; was your attention then taken away from the pedestrians by that confusion; did you ever have that happen? * * *

A. Well, I’d be slower to start. It was a light that you would watch, I knew that neighborhood.”

At page 190:

Q. And when you waited, you would be giving this light attention that would bring you to this stop, is that right? A. Actually I used the pedestrians. If they started to move, then I knew that I had the light. That’s the way I worked it out. [Emphasis supplied.]
‘1 Q. And you had learned the wisdom of that caution from prior experience with that light, is that right? A. Well, I lived in the neighborhood. We know that light condition.
*4f. M. W ".V
Q. And when you say you knew the condition of that light from living there, I take you knew it for some time before this unfortunate night, is that right? A. It was a condition that occurred often.”

Later, at page 191 Miss Scrimgeour testified: “ Q. Now, whether it refreshes your recollection or not, and with the hope that I don’t take advantage of you, does it help you to refresh your recollection, in line with what you yourself indicated before, that the light had been in that condition for some time before the night of this accident? * * * A. It’s not the condition before. It was a-a chronic condition.” (Emphasis supplied.)

This same witness, in speaking of this light as it existed at the time of the accident, at page 187 testified:

“ Q. Well, from what you observed about the light when you came back, would you say that a car proceeding north on Webster Avenue from 182nd to 183rd would see the light in the direction that it was supposed to face? A. No. Talking about the northwest light, .right?
“ Q. Yes, that’s right. A. If a car were coming north, going to the south — going north, no.”

I have purposely refrained from quoting any of the testimony of the plaintiff’s witnesses up to this point. I have confined myself to quoting from the testimony of Miss 'Scrimgeour, the witness for the defendant Broadway, on whom the majority opinion places great reliance. However, one particular bit of testimony given by the witness, Yohai, is of significance. At page 206 this witness testified, without objection, that about 15 or 20 minutes after the accident ‘ ‘ one policeman grabbed his *239club and tried to — with his — tried to straighten out the light with his club.5 ’

The majority opinion contends that, assuming negligence on the part of these two defendants, there is no evidence to indicate that this negligent condition was a proximate cause of the accident in which decedent met his death.

In the case of Gramm v. State of New York (28 A D 2d 787, 788) the court quoted, with approval, the following passage of Prosser, Torts (3d ed., § 41, p. 246): “ ‘ The fact of causation is incapable of mathematical proof * * *. If as a matter of ordinary experience a particular act or omission might be expected, under the circumstances, to produce a particular result, and that result in fact has followed, the conclusion may be permissible that the causal relation exists. Circumstantial evidence or common knowledge may .provide a basis from which the causal sequence may be inferred.’ ”

It is the theory of the majority that the cause of the accident was the negligence of the automobile driver who ran away after the accident. It reasons that, without his intervention, this accident could not have happened. The rule in this connection is clearly set forth in the case of Foley v. State of New York (265 App. Div. 682, 686) and the following quotation from that case is applicable to the case at bar:

‘ ‘ To relieve the first negligent actor of liability for the injury, it must appear that the intervening cause so entirely supersedes his negligence that it alone, without his negligence contributing thereto in any degree produces the injury. * * #
“ If the failure of the red light contributed in any degree to the happening of the accident, then the chain of causation remained unbroken. * * * It is apparent that the absence of the red light not only contributed to the accident that happened, but that it was reasonably foreseeable that some such accident would occur under the situation which was allowed to exist. The mere fact that the acts of the drivers of the cars intervened does not necessarily create a superseding cause, and this is particularly so where the original wrongdoer could have anticipated that the intervening acts might naturally follow the original wrongful act. * * * The mere fact that the State’s negligence alone was not enough to produce the injury without the co-operation of the drivers of the cars, does not break the chain of causation or relieve the State from liability. * * *

It seems clear that the absence of the red light started a chain of events which culminated in this accident. The acts of the drivers whether negligent or not were concurring causes and the *240failure of the red light still remained one of the proximate causes.”

In the case of Dunham v. Village of Canisteo (303 N. Y. 498, 503, 505-506) there is found the following:

" If there is evidence from which the negligence of the defendants may be reasonably inferred, the question was properly one for the jury. * * *
The question here is whether the defendants’ acts or omissions to act substantially contributed to the decedent’s death. We stated the applicable rule in Cornbrooks v. Terminal Barber Shops (282 N. Y. 217, 223, Lewis, J.): ‘ It is not enough that the defendant, in an effort to break the chain of causation, should prove that plaintiff’s injury might have resulted from other possible causes, nor is it required of the plaintiff that he eliminate by his proof all other possible causes. “ * * * It is enough that he shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred.” ’ ”

In Foley v. State of New York (294 N. Y. 275, 280) the court said: “ Nor can we say as matter of law upon this record that the bulb failure was not the proximate cause of the collision which occurred, or that the acts of the claimants constituted contributory negligence. ‘ Several acts may occur to produce a result, one or more being the proximate cause * * * When varying inferences are present, a jury question is raised.’ ”

It must be borne in mind that we are here dealing with a death action and it is a well-established rule of law that, in such an action, plaintiff is not held to as high a degree of proof of the cause of action as where an injured plaintiff can himself describe the occurrence. (Noseworthy v. City of New York, 298 N. Y. 76; Swensson v. New York, Albany Desp. Co., 309 N. Y. 497; Eder v. Cashin, 281 App. Div. 456.)

In the case of Eder v. Cashin (supra) the court conceded that the proof of negligence was scant, but it, nevertheless, thought it sufficient to send the case to the jury. At page 458 of its opinion the court said: “ If there is a possible hypothesis on the evidence denying fault to the intestate and permitting an imputation of negligence to the defendant the case is for the jury ”.

The law is well settled that, if the injury is the natural and probable result of the negligence or omission and is of such a character as an ordinary prudent person ought to have foreseen as likely to occur as a result of the negligence, then such negligent act is a proximate cause of the injury. This is so, even *241though the person charged with negligence did not foresee the precise injury which did result. Under such conditions the intervention of independent concurrent or intervening forces will not break the causal connection if the intervention of such forces was itself reasonably foreseeable. (Foley v. State of New York, 265 App. Div. 682, supra; Foley v. State of New York, 294 N. Y. 275, supra; there are decisions from other jurisdictions which have considered the question of defective lights at intersections and are to the same effect; Johnston v. City of East Moline, 405 Ill. 460; Campbell v. City of Tucson, 4 Ariz. App. 155; Vidrine v. General Fire & Cas. Co., 168 So. 2d 449 [La. App., 3 Cir., 1964].)

While condemning speculation, the majority opinion itself engages in speculation when it seeks to analyze what might have happened if the decedent had done one thing or another and it concludes that, in any event, proximate cause is not shown. But that is pure conjecture, because, as the majority opinion itself sets forth, the decedent ‘ ‘ might have hastened his crossing or retraced his steps to the southeast corner, and also might have been more alert to the approach of traffic ” if the light was working properly. In any event: “ We may not assume or speculate that adequate warning signs would not have been heeded * * * but may assume that had the stop sign been in position Smithart would have observed it and stopped. It is a fair conclusion * * * that ‘ adequate and proper warning would have resulted in * * * a quicker realization of the dangers ahead ’ ”. (Gurevitch v. State of New York, 284 App. Div. 717, 720.)

Paraphrasing the language quoted in the last-cited case, we cannot say, as a matter of law, that properly working traffic lights would not have been heeded, but, on the contrary, we may assume that, had the lights been working properly, both the operator of the automobile and the deceased would have observed them. But all of this, under the circumstances of this case, is not for an appellate court. Questions of fact are presented and: “ Only a jury is constitutionally endowed with the right to pass on conflicting evidence, as well as the credibility of witnesses ”. (Swensson v. New York Albany Desp. Co., supra, p. 505.)

The majority argues that the case of Lyons v. Provencial (19 A D 2d 517, 20 A D 2d 875, affd. 15 N Y 2d 1006) is distinguishable from the case at bar “ because of a defect in the signal light (not shown in this case to have been present on November 2, 1959) ”. I respectfully disagree with the dis*242tinction attempted to be. drawn by the majority. The Lyons case involved the same intersection, the same defective light on the northwest corner and the two victims in the Lyons ease, one of whom was killed in the accident, were crossing the intersection in the same direction as the decedent in the case at bar. The only distinction which can be drawn is that, in the Lyons case, one of the victims lived to tell his story and to furnish the details of the confusion, whereas, in the case at bar, the decedent cannot tell his side of the story. But that is the reason why it has been held numerous times 'that the proof required in a death action is far less than that required in a case where the injured person may give his version.

It seems to me that there is sufficient evidence from which the jury could properly infer that the acts of these defendants, or their omissions to act, substantially contributed to the happening of this accident.

The majority has also concluded that the trial court erred in failing to charge the jury in accordance with defendant Broadway’s request number 2. An examination of the complete charge of the trial court discloses that the court correctly covered all the salient features of the case and the law applicable thereto. The contention of defendant Broadway is not well founded. Its number 2 request to charge was improper and the court below was correct in declining to charge it. The request fails to take into account the fact that the jury could have found that this defective light was a concurrent contributing cause, even if the automobile operator had been negligent. This phase of the case was correctly covered by the trial court in its main charge, see particularly page 325, last paragraph, and continue to last paragraph at the top of page 326.

For the reasons above stated I dissent from the conclusion reached by the majority and vote to affirm the judgment below.

Eager, J. P., Rabin and McGivern, JJ., concur with Wither, J.; Capozzoli, J., dissents in opinion.

Judgment reversed, on the law and the facts, as to defendants the City of New York and the Broadway Maintenance Corp. to the extent of dismissing the amended complaint as against them, and to dismiss the cross claim of the City of New York against the Broadway Maintenance Corp., with $50 costs and disbursements to said defendants against the plaintiff, and the judgment is affirmed with respect to the dismissal of the cross claim of the Broadway Maintenance Corp. against Safeway Stores, Inc., with $50 costs and disbursements to Safeway Stores, Inc., against the Broadway Maintenance Corp.