Bolte v. City of New York

Witmer, J. Plaintiff’s intestate, a pedestrian crossing Webster Avenue at Bast 183rd Street in The Brons, was struck and killed by an unknown (hit and run) motorist on the evening of November 2, 1959. Plaintiff brought this action to recover against the City of New York and the Broadway Maintenance Corp. (Broadway) for negligent maintenance of the traffic signal light at the northwest corner of the intersection, and against Safeway Stores, Inc. (Safeway), which at the time operated a store at said corner of the intersection. It appears that Broadway was under contract with the City of New York to maintain in proper working order the traffic signal lights in this area. There was evidence from which a jury could find that Broadway was negligent in the performance of its duty with respect to maintaining the signal light in question. There was also evidence that trucks of Safeway negligently collided with said signal light from time to time while making deliveries to its store at that corner, resulting in a turning of the light, so that it would become confusing to traffic, both vehicular and pedestrian, as to which way the light was signalling green and which way red. Upon that evidence the jury rendered a verdict for the plaintiff against Broadway and the city, and against the plaintiff in favor of Safeway. Because of the statutory limitation in the amount of interest which a municipality may be required to pay, judgment upon the verdict was entered against the city in the sum of $130,737 and against Broadway in the sum of $144,949; and on the city’s cross complaint against Broadway, the city was awarded judgment in the sum of $130,737. The defendants city and Broadway appeal from the plaintiff’s respective judgments against them, and Broadway also appeals from so much of the judgment as grants judgment to the city on its cross claim against Broadway and from so much of the [234] judgment as dismisses Broadway’s cross claim against Safeway. The plaintiff has not appealed from the dismissal of the complaint as against Safeway or Motor Vehicle Accident Indemnification Corporation. The record shows that Webster Avenue is a two-way street running north and south; that 183rd Street runs east and west and crosses Webster Avenue; that there are traffic signal lights at the northwest and southeast corners of the intersection; and that the traffic lights on Webster Avenue for cross streets immediately north and south of 183rd Street operate in unison, all being green at the same time and all changing to red at the same time for traffic thereon. 183rd Street is approximately two hundred feet north of 182nd Street. The witness, Miss Scrimgeour, testified that on the evening in question she was driving northerly on Webster Avenue and came to a stop at 182nd Street because the traffic signal light there was red for her; and that another vehicle going north stopped at her left, also waiting for the light to change. The streets were wet and it was dark. Before the light changed, she saw a man come out of a store at the southeast corner of Webster Avenue and 183rd Street and start to cross Webster Avenue, westerly. At that time the signal light at the southeast corner of the 183rd Street intersection was red for Webster Avenue traffic. The lights then changed to green for Webster Avenue traffic, and Miss Serimgeour proceeded northerly at a moderate speed, 20 to 25 miles per hour. The vehicle on her left also proceeded, but much faster than Miss Serimgeour drove. As Miss Serimgeour approached 183rd Street she heard a screech and a thud; and saw the car ahead of her to her left stop suddenly and then take off fast. The pedestrian she had seen crossing Webster Avenue was found dead about three fourths of the way across the avenue toward the west side and about 30 feet south of the south crosswalk of 183rd Street extended. The immediate question posed by this appeal is, assuming the defendants city and Broadway were negligent in the maintenance of the traffic signal light at the northwest corner of the intersection, whether the record shows a proximate cause between the negligent condition of the signal light and decedent’s death. We have concluded that it does not. We consider the facts first with respect to the effect the light could have had upon the action of the driver of the vehicle which struck the decedent, and then with respect to the effect the light could have had upon the action of the decedent. At the time the driver proceeded northerly from 182nd Street when the light turned green for northbound traffic, the light on [235] his side on Webster Avenue at the southeast corner of 183rd Street was also green for him, only 200 feet away. Unquestionably, he had the right to proceed through the 183rd Street intersection, except for other traffic which was clearing it, if any. There is no evidence of other traffic there, except the pedestrian, now deceased. The latter having begun to cross Webster Avenue when the light at the southeast corner was green for him, had a right to continue on across the avenue in the exercise of due care, and the driver had the duty to yield the right of way to him (Rules and Regulations of City of New York, ch. 26-A, Traffic Regulations, art. 5, § 77; and see Vehicle and Traffic Law, § 1111, subd. [a], par. 1; and 6 Warren’s Negligence, § 6.21, p. 417). Under such circumstances whether the light at the northwest corner was red or green would be immaterial. If it were red, of course the driver should have stopped. If it were green, as it should have been, still the driver should have yielded the right of way to plaintiff’s intestate. Next, considering the light in question from the viewpoint of the plaintiff’s intestate, the evidence is that he emerged from the store at the southeast corner when the traffic light on that corner was green for him to cross Webster Avenue, and he properly proceeded on that green light to cross Webster Avenue. Before he got across, the traffic lights changed, permitting traffic to move on Webster Avenue. Under such circumstances, as noted above, he had the right to continue across, which apparently he did until he was struck. Upon this record, how can it be said that the condition of the signal light on the northwest corner was material? Assuming that the light was improperly turned, so that when it changed while decedent was part way across the avenue, it would not affect his legal right to proceed. If it seemed to him then to have turned green for hfm when in fact it had turned red, he could only be induced to continue across as he had the right to do. If it seemed to him then to have turned red for him, which it should have done, he still had the right to continue across. At best for the plaintiff, it may be speculated that had the light shown red for the decedent at that time, he 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. But that is pure conjecture, without any evidence of decedent’s actual conduct to support it, and unrelated to his rights or obligations at the time; and there being no evidence of the effect of that light on decedent’s conduct, it was improper to permit the jury to speculate that the condition of the light had some effect thereon (Cole v. [236] Swagler, 308 N. Y. 325, 331; Taylor v. City of Yonkers, 105 N.Y. 202, 209; PJI 2:70). Plaintiff relies upon the ease of Lyons v. Provencial, 19 A D 2d 517, 20 A D 2d 875, affd. 15 N Y 2d 1006, wherein a pedestrian recovered against the appealing defendants herein for injuries he received when struck at this same intersection on November 21, 1959, nearly three weeks after the accident in the case at bar. Such reliance is misplaced, because the Lyons case is distinguishable upon its facts. There, because of a defect in the signal light (not shown in this case to have been present on November 2, 1959), plaintiff began to cross the street when the light seemed to him to be red for Webster Avenue traffic, whereas to the driver it seemed to be green for such traffic. That is a much different case from the one which we are considering. We recognize that in the present action, it being one for wrongful death, less evidence is needed to establish a prima facie case than in an action where the injured party survives and can testify (Noseworthy v. City of New York, 298 N. Y. 76); but that rule cannot save a case where causal relation is not established between the alleged negligent conduct and the accident (Cole v. Swagler, 308 N. Y. 325, 329-331, supra). In view of the foregoing, there is no question of fact with respect to the signal light causing the accident; and it was error to submit that question to the jury. ‘ ‘ Since the evidence as to the circumstances surrounding the happening of the accident which damaged plaintiffs is undisputed, the question as to whether any act or omission of defendants-appellants was a proximate cause thereof was one for the court and not for the jury ”. (Tsitsera v. Hudson Tr. Corp., 14 N Y 2d 855, 857; and see, also, Rivera v. City of New York, 11 N Y 2d 856; and 1 N Y PJI 148.) Thus, we must dismiss the complaint as against the appealing defendants for failure in law to make out a case based on the facts as we find them. Were we not dismissing the amended complaint as a matter of law we would reverse as against the appealing defendants and grant a new trial on the ground that the court erred in failing to charge the jury as to the contentions of the defendant Broadway as to how the accident occurred and the cause thereof, and in refusing, nevertheless, to give said defendant’s request to charge number 2 which contained such contentions (Buckingham v. Donarry Realty Corp., 25 A D 2d 722, 724; Smiraldo v. Lashins Constr. Inds., 24 A D 2d 740; Arroyo v. Judena Taxi, 20 A D 2d 888; cf. Buckley v. Westchester Light. Co., 93 App. Div. 436, 440, affd. 183 N. Y. 506; and Wagner v. Buffalo & Rochester Tr. Co., 59 App. Div. 419, 424, affd. 172 N. Y. 634), [237] and on the further ground that the verdict was against the weight of the evidence. The judgment below should, therefore, be reversed on the law and on the facts as to the appealing defendants, the City of New York and the Broadway Maintenance Corp., to dismiss the amended complaint as against, them, and to dismiss the cross claim of the City of New York against the Broadway Maintenance Corp., with costs and disbursements to said -defendants against the plaintiff; and the judgment should be affirmed with respect to the dismissal of the cross claim of the Broadway Maintenance Corp. against Safeway Stores, Inc., with costs and disbursements to Safeway Stores, Inc., against the Broadway Maintenance Corp.