Pretto v. Leiwant

In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal (1) from an order of the Supreme Court, Queens County, dated May 31, 1979, which denied their motion to set aside the jury verdict in favor of defendants Leiwant and (2) from so much of a judgment of the same court, entered July 30, 1979, as is in favor of defendants Leiwant. Appeal from the order dismissed (see Matter of Aho, 39 NY2d 241, 248). Judgment reversed insofar as appealed from, on the law and the facts, order dated May 31, 1979 vacated, motion granted and, as between plaintiffs and respondents, action severed and new trial granted, with costs to abide the event. Under the posture of the proof adduced at the trial by the defendant Sherry Leiwant (hereafter defendant) and her witnesses, the verdict in her favor was contrary to the weight of the evidence. The defendant failed to present any evidence to explain the loss of control of the motor vehicle which she was operating in an easterly direction on Northern Boulevard in Upper Brookville, New York, on April 24, 1976. In describing the occurrence, she testified: “I was coming eastward on Northern Boulevard and came over a hill, saw a red light, down the hill, and started to stop. I put my foot on the brake, and, as I was braking, I skidded very badly into the lanes of oncoming traffic.” (Emphasis added.) The traffic 580 light to which the defendant referred was located at the intersection of Wolver Hollow Road, which was about 200 yards eastward and moderately downgrade from the top of the hill, from which point she started to apply her brakes. Warren Cook, the passenger riding with the defendant, called as a witness on her behalf, testified that after she had applied the brakes, the car skidded for a distance of about 50 to 70 yards in the eastbound lane of traffic in which she had been proceeding before it continued into the opposite lanes of the westbound traffic to the point of contact with the motor vehicle in which the plaintiffs were riding. The additional distance which the defendant’s vehicle moved in the opposite lane of traffic before it struck the plaintiffs’ automobile was approximately 100 yards. Another witness, Gunars Novickis, who had also been driving in the westbound lane of traffic and who had seen the accident, when called to testify on behalf of the defendant, described the movement of her automobile as follows: “I saw the other car that was traveling eastbound shooting across our westbound lanes.” The highway was straight and there was no evidence of any defect in either the car or the driving surface. Notwithstanding that it had previously rained and the road was still wet, the defendant was, nevertheless, under a duty to operate her automobile with reasonable care having regard to the actual and potential hazards existing from weather, road, traffic and other conditions, and to maintain a reasonable rate of speed and proper control of her vehicle under the conditions prevailing. Viewing the defendant’s evidence in its best possible light, her “explanation” (if it may be termed such), that, in her attempt to stop her car for a red light located about 200 yards away, from a speed not in excess of 35 miles per hour, she skidded for the inordinate distance of 150 to 170 yards across two opposing lanes of traffic is unpersuasive, especially when coupled with the testimony of one of her eyewitnesses that he saw the defendant’s vehicle “shooting across” the westbound lanes. Rather than exculpating the defendant, the totality of the evidence compels the inference that the defendant was negligent in the operation and control of her automobile and renders the resulting verdict in her favor contrary to weight of the evidence. (See Coury v Safe Auto Sales, 32 NY2d 162; Pfaffenbach v White Plains Express Corp., 17 NY2d 132; see, also, Cohen v Hallmark Cards, 45 NY2d 493.) Further, it was error to bar cross-examination by plainiffs’ counsel of the passenger in respondents’ car as to whether he had settled his personal injury claim against respondents. It is permissible to establish on cross-examination that an adversary witness has settled a claim against the party calling him to testify to show bias. (See Keet v Murrin, 260 NY 586; Richardson, Evidence [Prince, 10th ed], § 503.) Since, under the circumstances of this case, it was indicated that plaintiffs suffered retrograde amnesia, upon the new trial the issues of liability and damages should be tried together. Damiani, J. P., Gibbons and Gulotta, JJ., concur.