Lo Piccolo v. Knight of Rest Products Corp.

Breitel, J. In a personal injury negligence action the jury returned a verdict for defendant. On motion, the trial court set the verdict aside as contrary to the weight of the credible evidence. Defendant appeals, urging that plaintiff failed to make out a prima facie case under the rule in Galbraith v. Busch (267 N. Y. 230), and that, in any event, the verdict should not have been set aside, as the jury would not be required, on the facts in the case, to draw an inference of negligence. The order setting aside the verdict in favor of defendant and granting a new trial should be reversed, the verdict reinstated, and judgment entered in favor of defendant, dismissing the complaint. On August 1, 1950, on the Manhattan Bridge in this city, two trucks, one driven by plaintiff and the other owned by defendant, collided head-on. The day was rainy and the road surface slippery. The roadway was- constructed of steel-ribbing with recessed concrete fill, allegedly adding to the slipperiness of the surface. As a result of the impact plaintiff was thrown from his truck and sustained injuries. Defendant not only disputed liability but disputed the nature and extent of the injuries allegedly sustained by plaintiff. Defendant, however, offered no testimony on the question of liability. Its driver was not called as a witness. The sole evidence on the cause of the accident came from the witnesses — 371 — produced by plaintiff. Thus, plaintiff testified, referring to defendant’s truck, that it “ shoots out from my extreme left lane and with a flash it’s right in front of my truck, hit me head on and I remember just flying, and that’s all I remember ”. Another truck driver, John Babick, who was driving immediately behind plaintiff’s truck, testified as follows: “ Well, I was driving up — this pickup panel was in front of me, this other truck came down and sideswiped him, hit him head on, swung him around and went right across the other side of the lane, and the whole highway tied up and this fellow here was lying out in the roadway with his head bleeding and bleeding from the mouth. That’s all I remember.” The foregoing was the only direct testimony on the cause of the accident. Plaintiff was cross-examined by defendant, largely to establish a prior accident in 1946. In that accident plaintiff sustained an injury to his back. In this case, plaintiff also claimed injuries to the back, in addition to a disputed fracture of a facial bone. During the same cross-examination, plaintiff’s increased earning power since the accident was also established. Plaintiff was not cross-examined as to the cause of the accident. Plaintiff’s witness, Babick, was cross-examined primarily by defendant to establish the unusual construction of the roadway and the slipperiness of the surface. When pressed as to whether the surface was very slippery, the witness said: “ It was slippery, I am not saying very slippery ’ ’. Defendant, on cross-examination, developed similar evidence from the police officer, who had come to the scene after the accident, namely, to the effect that the weather was drizzling and that the roadway surface consisted of steel mesh that protruded past the concrete base, that is, was “ waffle-iron in that respect ”. As noted earlier, defendant offered no evidence on its own case as to the cause of the accident. It offered, however, the testimony of a physician selected from the court-designated medical panel. He testified to the finding in the hospital record of the facial-bone fracture, but added that he had not had the opportunity to verify that fracture. With regard to plaintiff’s back injuries and neurological complaints, he minimized or negated the conditions and suggested that the litigation was a cause of the claimed symptoms. He also described the lack of symptoms when plaintiff’s attention was distracted in the course of his examination. In setting aside the verdict the trial court restrainedly observed that ‘ ‘ the credibility of certain witnesses was certainly weakened ’ ’. Since, except for the medical panel physician, all the wit-. — 372 — nesses who testified were those provided by plaintiff, the reference, to them is unequivocal. This was the substance of the proof in the case. Since the case of Galbraith v. Busch (267 N. Y. 230, supra), it has been settled law in this State that proof merely of the sudden swerving of an automobile from its own lane is not prima facie evidence of negligence or evidence sufficient, without more, to permit an inference that the driver was negligent. The court then observed that a sudden swerve might be due to several causes, including the operation of the automobile, the condition of the vehicle, or the condition of the roadway. As there were no extraordinary conditions in the road, however, which would account for the accident, it was held that the probable cause of the accident involved the operation of the automobile or some defect in it. Since Galbraith was a guest, an unknown defect in the automobile would not ground liability, as a guest was owed no duty with regard to such defects. In that respect the case turned on the fact that Galbraith was a guest. But, in a larger sense, the holding is that a party, who seeks to make out a prima facie case where there is insufficient evidence to apply the doctrine of res ipsa loquitur, must establish that every probable cause of the accident rests on the violation of a duty owed to him. In this case there was evidence of “ extraordinary conditions ’ ’ with respect to the road, namely, the steel-ribbing-concrete construction and the added slipperiness of the surface due to the rain or drizzle. Consequently, the analysis and result of the Galbraith case may not be avoided. The rule of the Galbraith case has been consistently followed (Lahr v. Tirrill, 274 N. Y. 112; Cole v. Swagler, 308 N. Y. 325; Hollenbeck v. Hollenbeck, 286 App. Div. 937; cf. Marinan v. Kronberger, 280 N. Y. 640). Before the rule had been settled, this court had held differently in a case where a truck, unexplainedly, had jumped the sidewalk and struck some pedestrians. (Locicero v. Messina, 239 App. Div. 635.) Whether the Locicero case may be reconciled on the doubtful distinction that the vehicle jumped a pedestrian sidewalk, rather than merely swerving from a proper lane, need not now be determined. Just a month before the Locicero case was decided, however, this court decided Bennett v. Edward (239 App. Div. 157). The facts there were indistinguishable from those in the Galbraith case. It was held that the doctrine of res ipsa loquitur applied, and that the defendant had the burden to explain the accident and, if possible, overcome the “ presump — 373 — tion ” of negligence. This is precisely the rule that was overturned in the Galbraith case. And it was the dissenter in the Galbraith case who relied upon the Bennett case, among others. So it was evident that, in 1933, the thinking of this court rested upon a basis which was about to suffer total rejection in the Court of Appeals. At first blush and as a novel proposition, it may seem that a driver whose vehicle suddenly swerves from its proper lane should have the duty to come forward and explain why the untoward event has occurred. Nevertheless, it is also understandable why the courts in this State have laid down the rule that it is not sufficient to place such a burden upon the defendant, if there are any circumstances which would otherwise reasonably account for the event without the defendant being negligent.* In the Galbraith case, because the pavement was dry and the weather clear, the only two categories of causes which could account for the sudden swerving seemed to the court to be either negligent operation or negligent maintenance. In this case, there is an additional category of probable causes which could account for the sudden swerving of the automobile, namely, the peculiar construction of the roadway aggravated by wetness of the surface. In other words, the proof suggested a skid as strongly as it did a wheel-controlled deviation from the proper lane. In any event, whether the Galbraith rule is justified or not, it has certainly become entrenched, and has been restated approvingly only so recently as in Cole v. Swagler (308 N. Y. 325, supra). Not to be ignored as a policy factor is the wide — 374 — availability which now exists to examine the defendant before trial and establish the circumstances of the accident; nor have the courts ignored the pervasiveness of liability insurance or been unaware of its practical consequences. In considering the proof in this case as to wind her the swerving was so sudden as to preclude any deliberateness in the operation of the automobile which, in turn, might be suggestive of negligence by the driver, the distinction laid down by Mr. Justice Betigan in Montgomery v. Humphrey (284 App. Div. 365) may not be ignored. In the Montgomery case, however, there was evidence in the record that before the accident, for some measurable interval, defendant’s vehicle had begun to veer to the wrong side of the road, and that this drift had continued beyond the center line. This, of course, negated the suddenness of the swerve. Hence, it was very properly held that there was evidence of negligence which, unless rebutted, sustained the jury verdict in favor of plaintiff. In this case there is nothing comparable to that proof. If there is any such proof, it must be found in the testimony of the witness Babick. And all he said was that defendant’s truck “came down and sideswiped him, hit him head on, swung him around ”. There is no time interval suggested by any part of this somewhat contradictory description of the accident, indicating deliberateness in the operation of defendant’s vehicle, as there was in the Montgomery case. For this reason, it would appear that under the existing rules plaintiff did not establish a prima facie case. But, even assuming that plaintiff had established a prima facie case based on res ipsa loquitur, it would not have provided such proof of defendant’s negligence which a jury, in the absence of rebuttal, was bound to accept. At best, plaintiff was relying upon proof which, it might be argued, a jury was entitled to accept in drawing an inference of negligence. It is now well settled in this State, and in most of the jurisdictions of the country, that, under such circumstances, the jury is not bound to make the inference of negligence, even if the defendant offers no countervailing proof. The rule was definitively laid down in the leading case of George Foltis, Inc. v. City of New York (287 N. Y. 108), settling considerable confusion among the precedents which then obtained in this State. The history and the analysis of the rule have been exhaustively stated by Prosser (Prosser, Torts [2d ed.], § 43). It is no longer doubted that the doctrine of res ipsa loquitur classifies as simply another species of circumstantial evidence. As such, the permissible inferences and the procedural con — 375 — sequences relate to the nature and quality of the evidence offered by plaintiff to sustain the inference of negligence. (Galbraith v. Busch, 267 N. Y. 230, 233-234, supra; Prosser, Torts [2d ed.], op. cit., § 43.) Thus, the jury in this case was entitled not to draw the inference of defendant’s negligence, as urged by plaintiff and disputed by defendant, in view of the proof as to the condition of the highway at the time of the accident. Moreover, it would be a meaningless distinction to differentiate between directing a verdict for plaintiff and holding that the verdict in favor of defendant was against the weight of the credible evidence. Because to so hold is to say, in effect, that the jury had no reasonable recourse except to find in favor of plaintiff, unless defendant came forward and rebutted plaintiff’s proof. This is exactly the consequence which follows from assuming (erroneously, under the cases) that there was a “ full ” presumption of negligence from the sudden swerving from the proper lane, which must be rebutted if the case is even to go to the jury. The doctrine of res ipsa loquitur would not take us that far (George Foltis, Inc. v. City of New York, supra, esp. pp. 118-119; Prosser, Torts [2d ed.], op cit., § 43).* Accordingly, the order setting aside the verdict and granting a new trial should be reversed, on the law, on the facts, and in the exercise of discretion; the verdict in favor of defendant should be reinstated, and judgment entered dismissing the complaint, with costs to defendant-appellant. Footnotes [*] Thus, in the Galbraith ease, Judge Lehman said (p. 234): “ The doctrine of res ipsa loquitur is not an arbitrary rule. It is rather a common-sense appraisal of the probative value of circumstantial evidence. It requires evidence which shows at least probability that a particular accident could not have occurred without legal wrong by the defendant. To negative every possibility that the accident occurred in some extraordinary manner which would exculpate the defendant is often impossible. In the administration of the law we must be satisfied with proof which leads to a conclusion with probable certainty where absolute logical certainty is impossible. We may be constrained to act upon incomplete evidence where complete evidence is impossible. Then the logical probative force of the evidence produced is measured, in part, by the test of whether it is the best evidence available. * * * That doctrine {res ipsa loquitur) has been applied here because the evidence shows that the automobile in which the plaintiff was a guest was in the exelussive possession and control of the defendant. The courts below in applying that doctrine have failed to consider whether the circumstances, though unexplained, show that ordinarily the accident would not have occurred without neglect of duty owed by the defendants or either of them to the plaintiff.” (See, also, Prosser, Torts [2d ed.], op. cit., infra, p. 212.) [*] In the Foltis case, Chief Judge Lehman said (p. 118): “ Though the plaintiff’s proof, when it rested, may have been sufficient to establish prima facie the negligence of the defendant, it was certainly not conclusive proof. Even where the rule of res ipsa loquitur is applied, the burden of showing that the injury is due to the negligence of the defendant rests on the plaintiff. The burden never shifts to the defendant, and the plaintiff must sustain its claim by a preponderance of evidence. (Plumb v. Richmond Light & R. R. Co., 233 N. Y. 285.) Here the defendant produced evidence intended to meet the prima facie case established by the plaintiff. The jury is the trier of the facts. If conflicting inferences may be drawn, choice of inference must be made by the jury. Upon all the evidence in this case the jury refused to find that the plaintiff had proven negligence by a preponderance of evidence. Its vei'diet may not be disregarded unless at the close of the whole case the plaintiff’s prima facie proof had become conclusive.”