Sonntag v. Dor-Vac Corp.

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Nassau County (Collins, J.), entered April 25, 1990, which, upon denying their motion to set aside a jury verdict in favor of the defendants as against the weight of the evidence, dismissed the complaint. Ordered that the judgment is affirmed, without costs or disbursements. A van operated by the defendant Anthony P. Campana and owned by the defendant Dor-Vac Corp. struck and injured the plaintiffs as they were attempting to cross the three southbound lanes of Route 107 in Hicksville, New York. Campana testified that he was traveling in the extreme left lane. He observed the plaintiffs traversing his lane when he was approximately 900 feet away from them. Campana, who had been traveling at between 30 and 35 miles per hour, decelerated and observed the plaintiffs move into the middle lane. However, when Campana was approximately 60 to 70 feet north of the plaintiffs, they "backpedaled” into his lane and were again in front of his van. Apparently, the plaintiffs were trying to avoid vehicles in the middle and right southbound lanes. Although Campana slammed on the brakes, he could not avoid striking the plaintiffs. The evidence further established that the plaintiffs were attempting to cross at the point where Route 107 intersects with the entrance to the Mid-Island Shopping Plaza. Campana testified that the lights at the intersection were in his favor. Over the plaintiffs’ objection, the court instructed the jury [595] that they could consider whether Campana was faced with an emergency (see, PJI 2:14). The plaintiffs contend that this was error. We disagree. Viewing the evidence in a light most favorable to the defendants, "it is more than conceivable that a jury could conclude that this defendant was faced with an emergency” when the plaintiffs abruptly changed direction and returned to a point that was directly in front of his van (Ferrer v Harris, 55 NY2d 285, 292, amended on other grounds 56 NY2d 737; see also, Rivera v New York City Tr. Auth., 77 NY2d 322, 326-327). It was therefore proper for the court to charge the jury concerning the effect of an emergency on the reasonableness of the defendant’s conduct (see, Bochnak v Mackes, 159 AD2d 882; McGloin v Austin, 89 AD2d 583, affd 58 NY2d 731). The plaintiffs’ remaining contention is without merit (see, Nicastro v Park, 113 AD2d 129, 134-135). Mangano, P. J., Balletta and Copertino, JJ., concur.