Reitano v. Dobbs

Steuer, J. In this personal injury action arising out of a collision between automobiles, the plaintiffs assert several rea [105] sons why the verdict of the jury in favor of the defendant should be set aside. We find that none of them requires that to be done. The first claimed error is based on a sentence in the charge quoted in the dissenting opinion. The appellants contend that this was an instruction to the effect that if the driver of the automobile in which the plaintiffs were passengers was contributorily negligent, negligence would bar recovery to the passengers. A careful reading of the quoted passage reveals that the court did not go to that extent. It is quite true that the instruction was unfortunately phrased and the interpretation claimed could well have been made. However, as the dissent concedes, the proposition had been adequately and properly explained in the main body of the charge. Had plaintiffs ’ counsel been fearful of the effect of the later ambiguous instruction, it was his duty to call it to the attention of the court for either explanation or correction. This obvious corrective measure was not taken either by exception or request. The second claimed error by the court was sustaining the objection to the question asked of defendant on cross-examination whether he had ever been convicted of a crime. Concededly the crime about which counsel made inquiry was a conviction for leaving the scene of the accident in question. For two reasons the exclusion of the evidence of conviction did not constitute error. The conviction was for something that occurred after the happening of the accident and hence could have no bearing on the occurrence of the accident itself. It would therefore not be a subject of affirmative proof (Damelio v. Machi, 192 Misc. 298) and its introduction before the jury could have no purpose other than the production of a prejudiced atmosphere (Margos v. Gonzales, 34 Misc 2d 1058). Secondly, the only legitimate purpose of the inquiry was to impugn the credibility of the witness. But, as the dissent points out, there was no issue as to the facts of the accident. The version of events given by both sides was in accord. The only question for the jury was whether these events indicated a failure to exercise the requisite degree of care on defendant’s part. There being no issue of credibility, the error, if any, in excluding a question addressed solely to credibility was harmless. The substantial question in the case is whether the verdict based on virtual agreement as to what took place was against the weight of evidence. Concededly the collision occurred on an unlighted two-lane road on a dark and rainy evening. An unusual number of cars were proceeding in the opposite lane, that is, the lane in which plaintiffs’ car was moving. Defendant was negotiating a slight curve at a lawful rate of speed. He was [106] seeking to keep as far from the approaching headlights as the way permitted. In so doing he allowed his right front wheel to strike the shoulder, with a temporary loss of control from which the collision resulted. Unless we are prepared to say that this could not have happened to a driver exercising reasonable prudence, the jury’s conclusion that the defendant was not negligent must stand. It is not the consequence of conduct that determines whether it is negligent. The law does not require a standard of care that will preclude an untoward result. Unless reasonable minds could not differ as to whether these facts show an actionable divergence from the standard of reasonable care, the jury’s verdict is unassailable. The judgment should be affirmed with costs.