Buren v. Town of Richmondville

McNamee, J. On June 25, 1937, Grant Van Burén was the superintendent of highways of the town of Richmondville, Schoharie county, and was supervising the repair of a town road in that town. William Babcock was operating a dump truck owned by the town in the progress of the work. Babcock drove out of a lane into the highway with a load of stone, at which time Van Burén and another man stood talking in the angle, a few feet from the lane and from the highway. Each was aware of the presence of the other. After the truck turned into the highway, it then started a backward movement along the highway toward the place of repair, about 120 feet distant. The truck was moving at the rate of about two miles an hour passing the lane, and Van Burén began to walk along the side of the road, on the right of the truck, in the same direction, but faster, and then entered upon “ a little trot,” and “ stepped up in back of the truck,” when five or six feet from its rear. And when he had taken two or three steps, he stumbled, fell, and failed to rise. At that time the driver was looking to the rear, out of the cab door on the left side of the truck. The body of the truck was so broad the driver could not see behind the truck, and did not see Van Burén. The right rear wheel of the truck passed over Van Buren’s body, and caused his death. [486] There was evidence that the mirror was so placed on the track as to be of no use then, that the window in the back of the cab was obstructed so as to prevent vision to the rear, and that a practice prevailed in that kind of work not to back a truck unless there was a man stationed behind it to see that the road was clear. By this evidence the defendant sought to establish the negligence of the deceased, on the theory that the Town Law gave to the superintendent charge of the town highways, of their repair, and of the men and machinery employed for that purpose. The jury rendered a verdict for $15,000 in favor of the plaintiff. The trial judge reserved decision on the motion to dismiss at the close of the testimony, and later granted the motion to set aside the verdict and dismiss the complaint. The defendant urges the negligence of the decedent, as a matter of law. The proof shows that he had no skill nor experience in the driving of an automobile, was unfamiliar with its operation, and had no license to drive. And the jury might draw from the testimony the inference that he did not sense the necessity of vision from the driver’s seat, when a truck was moving backward. He was engaged in the rough work of road building, and the standards and practice in that pursuit may well involve common risks and hazards that would deter and frighten more timid souls of refinement. The decedent fell by accident, and failed to give evidence that he would rise; and what was the nature of his injury, or how badly he was hurt by the fall, is not known. Stepping behind a truck moving at a rate of speed of two miles an hour, at a distance therefrom, and starting “ on a little trot ” in the same direction, would not be negligence as a matter of law. The distance and the speed of the truck in a given case well might make it so. On a view of all of the evidence, we believe that the negligence of the decedent was a question for the jury. The negligence of the driver Babcock was shown. The decedent did not know how to run a truck, and he was compelled to leave its operation to the driver who unquestionably did know how. The truck was in good condition and could be stopped within a distance of six or eight inches, when running at the rate of speed stated. It is beyond dispute that the driver was moving the truck backward, that he did not and could not see the road behind his truck, but could see only along the side of it, and could see the left rear wheel only with special effort. Thus he backed the truck without knowing who or what was behind it. The evidence permitted of an inference that the mirror was useless in the circumstances and that the window in the back was obstructed. He resorted to such view as it was possible to get by leaning out of [487] the cab door. The statute provides for a “ mirror or other reflecting device so adjusted that the operator of such vehicle shall have a clear and full view of the road and condition of traffic behind such vehicle.” (Vehicle and Traffic Law, § 15, subd. 11.) And again it is provided, “ Before backing any vehicle the driver shall see that the way is clear and * * * exercise due vigilance to prevent accident.” (Vehicle and Traffic Law, § 83, subd. 3.) That the driver failed to comply with these statutory provisions is evident. And the evidence would warrant the jury in finding that this failure contributed to the injury. The defendant urged upon the argument that the town was protected from liability under the fellow-servant rule, and accordingly the plaintiff could not recover even though the driver was negligent, citing Fay v. DeCamp (257 N. Y. 407) and Erjauschek v. Kramer (141 App. Div. 545). This position cannot be maintained. A superintendent of highways of a town is an independent officer, and not an agent, an employee, or a servant (Youngman v. Town of Oneonta, 204 App. Div. 96; affd., 236 N. Y. 521), and, therefore, not a fellow-servant. The accident in question occurred in June, 1937. And two prior amendments of the General Municipal Law finally dispose of the question. By the provisions of these enactments, towns became liable, and assumed liability, for the negligence of the driver of a truck in the operation thereof upon its highways in the discharge of a duty imposed on the town; and this was so whether the duty being performed by the driver was a public duty for the benefit of the community, or of no special benefit to the town. (Gen. Municipal Law, §§ 50-a, 50-b; Laws of 1936, chaps. 100, 323.) In its brief the respondent, anticipating a possible reversal of the order under review, urged a new trial in that event, on the ground that the trial judge made erroneous rulings on the admission and exclusion of evidence. We have examined these questions, and find no substantial error therein. The order should be reversed, and the verdict reinstated, with costs. Hill, P. J., and Heffernan, J., concur; Crapser and Bliss, JJ., dissent; Bliss, J., in an opinion in which Crapser, J., concurs.