Goode v. Meyn

OPINION OF THE COURT Per Curiam. Plaintiff Christopher G. Goode (hereinafter plaintiff) was injured on December 3, 1986 at about 6:00 p.m. when he was struck by an automobile driven by defendant Maureen A. Meyn while standing on the roadway of State Route 308 in the Town of Rhinebeck, Dutchess County. The sequence of events leading to the accident was undisputed at the trial. Shortly before the accident, an empty school bus owned by defendant Rhinebeck Central School District (hereinafter the School District) and driven by defendant Richard Osterhoudt in a westerly direction on Route 308 struck two deer. Osterhoudt pulled the bus partially off the highway, parked and turned on his flashing lights. He did not, however, place on the highway to the rear of the bus 1 of the 3 red reflector triangles stored on the bus next to the driver’s seat. Plaintiff was also proceeding in a westerly direction on Route 308 when he came upon the scene and observed the bodies of the deer on the highway. He parked behind the bus in order to assist Osterhoudt with the removal of the deer carcasses obstructing the road. Plaintiff and Osterhoudt successfully removed the body of the deer nearest the bus. They walked easterly on the highway to the farther deer. As plaintiff prepared to pick the deer up, he noticed that it was still alive. [438] While his attention was thus focused on the deer, he was hit by the Meyn vehicle, also proceeding westerly on Route 308. At the trial, Meyn testified that she had just negotiated a curve in the area of the roadway where the Town garage was located when she first observed the rear lights of what she recognized was a large vehicle, a bus or a truck, but could not tell whether it was moving or stopped. The highway was straight and up a hill for about the next 200 feet to the crest of the hill. Meyn testified that the lights of the large vehicle remained in view as she proceeded along this section of the highway. However, she saw no other object in the road because she was blinded by the glare of headlights of vehicles coming from the opposite direction, until she saw plaintiff and the deer just momentarily before the impact with plaintiff at the crest. The case was submitted to the jury by means of a verdict sheet in which, as to each defendant, the issues of negligence and proximate cause were addressed in separate questions. The jury returned a verdict in favor of all defendants on findings that neither Osterhoudt nor Meyn were negligent. Plaintiff appeals from the judgment entered thereon. The jury’s finding of no negligence on the part of Osterhoudt and the School District is clearly against the weight of the evidence. The uncontradicted evidence established that Osterhoudt failed to place the triangle reflectors to the front and rear of the stopped school bus. In failing to do so after parking the 66-passenger omnibus on a public highway (not for the purpose of taking on or discharging passengers) under the circumstances and at the time in question, Osterhoudt plainly violated Vehicle and Traffic Law § 375 (17). Such a violation constituted negligence in and of itself, and could not be disregarded by the jury (see, McConnell v Nabozny, 110 AD2d 1060; 1 NY PJI 2:25, 2:26, at 156-157 [2d ed ]). We note that, although Supreme Court correctly charged that a statutory violation constitutes negligence in its general instructions to the jury at the close of the proof, it erroneously told the jury, in response to a subsequent question specifically addressed to the legal effect of the failure to place out reflectors, that it was merely "evidence of negligence” (see, McConnell v Nabozny, supra). In view of the verdict, we cannot conclude that the error was harmless. Plaintiff is therefore entitled to a new trial against the School District and Osterhoudt. We reach a different conclusion as to the verdict in favor of Meyn. Plaintiff was struck by the Meyn vehicle while he was [439] in the middle of a darkened highway with Osterhoudt attempting to remove one of the two deer that had been hit by the school bus. The testimony of Meyn revealed that she approached the scene in a westerly direction; she began to slow her car because she saw the lights of the school bus ahead, but because her vision was impaired by oncoming headlights she did not see plaintiff or the deer in the highway, until it was too late to avoid them. Based on these circumstances, Supreme Court charged the jury that if Meyn was faced with an emergency and acted as a reasonably prudent person would have acted, she could be found not negligent. However, if the situation facing Meyn was not sudden and should reasonably have been foreseen, or was created or contributed to by her own negligence, or she responded to the emergency in a manner that was not reasonably prudent, the jury could find her negligent. No exception was taken to this charge, and the jury absolved Meyn of any negligence by a vote of 5 to 1. Based upon the evidence outlined above, the jury could reasonably find that Meyn acted in a reasonably prudent manner as she approached the lights of the stopped school bus and that her inability to see the deer or plaintiff in the roadway behind the bus was not the result of any negligence on her part. When plaintiff and the deer were no longer obscured from Meyn’s view by the glare from oncoming lights, she was faced with an emergency situation, and the jury could and obviously did find that she was not negligent in the operation of her vehicle in response to the emergency situation. In these circumstances Supreme Court properly charged the emergency doctrine and the verdict in favor of Meyn should be sustained (see, Malatesta v Hopf, 163 AD2d 651, affd 77 NY2d 828; see also, Rivera v New York City Tr. Auth., 77 NY2d 322).