890 jury: "Applying these rules to the facts of this case, I charge you that if you find that Patrolman Donley, acting with reasonable prudence, could, or should have foreseen an accident as a result of the manner in which he stationed his vehicle at the time of the accident, or if his conduct was otherwise unreasonable in the light of what could have been foreseen, your finding will be that the defendant was negligent.” The defendant duly excepted.
The jury returned a verdict in favor of the plaintiffs on the issue of liability. In my opinion the trial court erred in permitting the plaintiffs’ expert to testify that it was improper police practice for Officer Donley to position his car in the parking lane adjacent to the curb on the northbound side.
This issue was within the province of the jury, as a group of adult persons of average intelligence with all the facts before them could form a conclusion (see Richardson, Evidence [Prince, 10th ed], § 367), and to add the weight of an expert’s opinion thereon may well have been prejudicial.
It is impossible to determine whether the verdict was based on the jury’s acceptance of the plaintiffs’ testimony that Donley positioned his car so as to block the driving lanes, or whether the jury accepted Donley’s testimony that he stopped in the parking lane and based its verdict, in part, on the expert’s improperly admitted opinion. There were also serious errors in the charge.
It was inadequate in that it was too general and did not sufficiently relate the law to the testimony (see Green v Downs, 27 NY2d 205, 208-209).
Further, in addition to reading to the jury the statutory provisions with respect to authorized emergency vehicles, the court should have included a charge on the standard of care in an emergency situation (see PJI 2:14; see, also, Thain v City of New York, 35 AD2d 545, 546, affd 30 NY2d 524; Stanton v State of New York, 26 NY2d 990, 992; Myers v Town of Harrison, 438 F2d 293, cert den 404 US 828).
"While hindsight can often furnish reasons for following one course or another, the acts of the [police officer] here must be considered as of the time when, and circumstances under which, they occurred” (Stanton v State of New York, supra, p 991). If the officers use their best judgment, "no liability will attach to their acts, even though hindsight might disclose alternate methods that may have been safer for the public bystanders” (Thain v City of New York, 35 AD2d 545, 546, supra).
I agree with the majority that the trial court properly exercised its discretion in denying the defendant’s application for a new trial on the basis of newly discovered evidence.
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