[193]*193Bergan, P. J.
Plaintiff’s car was struck on the left side between the door and rear fender by a car operated by defendant Christine Anderson in the Village of Jeffersonville. A verdict for $10,000 was returned by a jury in favor of plaintiff for her personal injuries against both defendants Anderson and the main question on appeal is whether it was error for the court to charge, as one alternative open to the jury, the doctrine of last clear chance; and if it were error, whether such an error had any significant bearing on the result.
A sharp factual difference exists between the two versions of the accident given by the respective drivers. Both cars had been proceeding northerly in Main Street. It was after dark and raining. The street was wide enough for four lanes of traffic — two in each direction. Plaintiff intended to make a left turn into a private driveway on the westerly side of the street. She testified that she then observed a car coming south; that when she got "near my destination I turned my car to go to the driveway and stopped there because a car was coming in the opposite direction, and I stood and waited until that car went past. But then when I looked up in the mirror I saw headlights coming my way so I waited."
These headlights were “ From the rear.” She added: “ I was petrified when I saw it ”, but this was stricken; and the witness continued: “ I just stayed there. I didn’t move. I just stayed there and waited.” She testified her directional signal was on.
The time plaintiff was standing is open to differing interpretations. At one point she said she saw defendants’ car from the time it backed out of a driveway some distance to the south. At another point she said she saw it for 30 seconds. She also said that she had time to observe its approach from the rear both in the mirror and by turning around and looking back at it, and at another point she estimated two seconds as the time she saw it.
Defendant driver’s version was that plaintiff’s car was moving when she first saw it and that she did not see it until “ a split second or two seconds ” before and “ it was coming from my right and going to my left ”.
Plaintiff estimated that she stopped her car close to the right-hand curb—not parallel to it — the rear about a foot from the curb, the front about two feet from it. Another witness for plaintiff who observed the accident testified that the front of plaintiff’s car, while standing and when struck by defendants’ car, was “ about half of the road ” from the white line at the center of the street, which would place plaintiff partly in the left lane of the two northbound lanes. Plaintiff also testified as to [194]*194the place in the road from which defendants’ car approached that the lights “ were right behind me
If from this variegated proof as to how the accident occurred, we must draw the most favorable inference to the Judge’s submission of the doctrine of last clear chance, as we must in order to rule on whether it was error, it would be possible to say that plaintiff’s car was stopped at an angle partly away from the curb in the lane of traffic, waiting under conditions of location and traffic, which a jury might possibly say were negligent and perilous, i.e., “ I just stayed there and waited.”
This could satisfy the first condition of the doctrine of last clear chance if the jury found that the act of standing and waiting was so perilous as to have been negligent. The second condition would be the actual knowledge by defendant driver of plaintiff’s peril. Defendant driver’s testimony shows no knowledge of the presence of plaintiff’s car at all until a split second or two before she ran into it; and then that it was moving.
But the Judge had to consider and cover conscientiously in framing his instructions other possibilities that the jury might find. The jury might well find that the plaintiff’s car was stopped in a perilous place in plain sight long enough to be seen; and that it was in fact seen by defendant driver in time to avoid the collision. The denial of knowledge of danger by a defendant is not conclusive on a jury, as the cases hold.
And the jury might have accepted as true plaintiff’s testimony that she sat .still for 30 seconds and watched the lights approach ; had time both to look in the mirror and turn around and see them; and that plaintiff’s car was standing in the road from the time defendant driver pulled out of the driveway.
At the time of the charge, the Judge could not know which of these conflicting versions the jury would accept. If plaintiff’s car was not moving but actually was standing still, either toward the middle of the lane or close to the curb, wherever it was, it was in the path of defendants’ car as the collision itself demonstrates.
But if the charge was erroneous it did not play so significant a role in this case as to require reversal. Every error does not require a new trial, and there is nothing about this limited doctrine which is destructive of a reasonable verdict because it is mentioned in error. The Judge closely and carefully circumscribed the application of the doctrine to the case. It was merely described in general terms in the charge and was not specifically tied into the facts of the case. To see it in due perspective the paragraph in this respect should be read exactly as given. The court said: ‘1 There is another doctrine of law known as ‘ Last [195]*195Clear Chance \ If a person finds himself in a place of danger through his own negligence, nevertheless, if the party who injures him saw him in such a position of danger and could have avoided the injury, there may be liability, providing it is shown that the party who saw him in the place of danger could have avoided the injury.”
In immediate context the Judge added: “This doctrine of last clear chance would not apply unless the person who injures had actual knowledge of the danger in time to avert the collision.” The very next paragraph was this: “ Applying these rules to the facts in this case, you must first determine whether or not the plaintiff, at the time and place in question, was guilty of contributory negligence, that is, negligence contributing in the slightest degree to the injuries which she alleges she sustained, and if you find that she was guilty of such contributory negligence in this respect then your verdict must be one of no cause of action.”
Thus, immediately after discussing the general doctrine of last clear chance and its very limited general operation, the Judge in effect substantially swept it out of consideration by saying, as to this plaintiff and in this case, that if she was “guilty of negligence ” which contributed “in the slightest degree ”, the verdict “ must be ” for defendants.
If there were error in respect of last clear chance, it is difficult to see how it could have had any possible adverse weight in the result. It could be applied only if the jury were to find that it was negligent for plaintiff to stop on the road. For if defendant driver’s version were accepted by the jury—that plaintiff did not stop—the jury could not under the charge possibly apply it, since the Judge told the jury that the person who injures another must have “ actual knowledge of the danger in time to avert the collision ”, And if plaintiff did stop on the road in a position of peril, as we have seen, the doctrine would have been properly charged.
Free access — add to your briefcase to read the full text and ask questions with AI
[193]*193Bergan, P. J.
Plaintiff’s car was struck on the left side between the door and rear fender by a car operated by defendant Christine Anderson in the Village of Jeffersonville. A verdict for $10,000 was returned by a jury in favor of plaintiff for her personal injuries against both defendants Anderson and the main question on appeal is whether it was error for the court to charge, as one alternative open to the jury, the doctrine of last clear chance; and if it were error, whether such an error had any significant bearing on the result.
A sharp factual difference exists between the two versions of the accident given by the respective drivers. Both cars had been proceeding northerly in Main Street. It was after dark and raining. The street was wide enough for four lanes of traffic — two in each direction. Plaintiff intended to make a left turn into a private driveway on the westerly side of the street. She testified that she then observed a car coming south; that when she got "near my destination I turned my car to go to the driveway and stopped there because a car was coming in the opposite direction, and I stood and waited until that car went past. But then when I looked up in the mirror I saw headlights coming my way so I waited."
These headlights were “ From the rear.” She added: “ I was petrified when I saw it ”, but this was stricken; and the witness continued: “ I just stayed there. I didn’t move. I just stayed there and waited.” She testified her directional signal was on.
The time plaintiff was standing is open to differing interpretations. At one point she said she saw defendants’ car from the time it backed out of a driveway some distance to the south. At another point she said she saw it for 30 seconds. She also said that she had time to observe its approach from the rear both in the mirror and by turning around and looking back at it, and at another point she estimated two seconds as the time she saw it.
Defendant driver’s version was that plaintiff’s car was moving when she first saw it and that she did not see it until “ a split second or two seconds ” before and “ it was coming from my right and going to my left ”.
Plaintiff estimated that she stopped her car close to the right-hand curb—not parallel to it — the rear about a foot from the curb, the front about two feet from it. Another witness for plaintiff who observed the accident testified that the front of plaintiff’s car, while standing and when struck by defendants’ car, was “ about half of the road ” from the white line at the center of the street, which would place plaintiff partly in the left lane of the two northbound lanes. Plaintiff also testified as to [194]*194the place in the road from which defendants’ car approached that the lights “ were right behind me
If from this variegated proof as to how the accident occurred, we must draw the most favorable inference to the Judge’s submission of the doctrine of last clear chance, as we must in order to rule on whether it was error, it would be possible to say that plaintiff’s car was stopped at an angle partly away from the curb in the lane of traffic, waiting under conditions of location and traffic, which a jury might possibly say were negligent and perilous, i.e., “ I just stayed there and waited.”
This could satisfy the first condition of the doctrine of last clear chance if the jury found that the act of standing and waiting was so perilous as to have been negligent. The second condition would be the actual knowledge by defendant driver of plaintiff’s peril. Defendant driver’s testimony shows no knowledge of the presence of plaintiff’s car at all until a split second or two before she ran into it; and then that it was moving.
But the Judge had to consider and cover conscientiously in framing his instructions other possibilities that the jury might find. The jury might well find that the plaintiff’s car was stopped in a perilous place in plain sight long enough to be seen; and that it was in fact seen by defendant driver in time to avoid the collision. The denial of knowledge of danger by a defendant is not conclusive on a jury, as the cases hold.
And the jury might have accepted as true plaintiff’s testimony that she sat .still for 30 seconds and watched the lights approach ; had time both to look in the mirror and turn around and see them; and that plaintiff’s car was standing in the road from the time defendant driver pulled out of the driveway.
At the time of the charge, the Judge could not know which of these conflicting versions the jury would accept. If plaintiff’s car was not moving but actually was standing still, either toward the middle of the lane or close to the curb, wherever it was, it was in the path of defendants’ car as the collision itself demonstrates.
But if the charge was erroneous it did not play so significant a role in this case as to require reversal. Every error does not require a new trial, and there is nothing about this limited doctrine which is destructive of a reasonable verdict because it is mentioned in error. The Judge closely and carefully circumscribed the application of the doctrine to the case. It was merely described in general terms in the charge and was not specifically tied into the facts of the case. To see it in due perspective the paragraph in this respect should be read exactly as given. The court said: ‘1 There is another doctrine of law known as ‘ Last [195]*195Clear Chance \ If a person finds himself in a place of danger through his own negligence, nevertheless, if the party who injures him saw him in such a position of danger and could have avoided the injury, there may be liability, providing it is shown that the party who saw him in the place of danger could have avoided the injury.”
In immediate context the Judge added: “This doctrine of last clear chance would not apply unless the person who injures had actual knowledge of the danger in time to avert the collision.” The very next paragraph was this: “ Applying these rules to the facts in this case, you must first determine whether or not the plaintiff, at the time and place in question, was guilty of contributory negligence, that is, negligence contributing in the slightest degree to the injuries which she alleges she sustained, and if you find that she was guilty of such contributory negligence in this respect then your verdict must be one of no cause of action.”
Thus, immediately after discussing the general doctrine of last clear chance and its very limited general operation, the Judge in effect substantially swept it out of consideration by saying, as to this plaintiff and in this case, that if she was “guilty of negligence ” which contributed “in the slightest degree ”, the verdict “ must be ” for defendants.
If there were error in respect of last clear chance, it is difficult to see how it could have had any possible adverse weight in the result. It could be applied only if the jury were to find that it was negligent for plaintiff to stop on the road. For if defendant driver’s version were accepted by the jury—that plaintiff did not stop—the jury could not under the charge possibly apply it, since the Judge told the jury that the person who injures another must have “ actual knowledge of the danger in time to avert the collision ”, And if plaintiff did stop on the road in a position of peril, as we have seen, the doctrine would have been properly charged.
The doctrine of last clear chance developed mainly in railroad cases, but in appropriate circumstances it has readily been applied in motor vehicle accidents (Chadwick v. City of New York, 301 N. Y. 176; Dino v. Eastern Glass Co., 231 App. Div. 75). It is perfectly well settled that the danger to the plaintiff caused by his own negligence must actually be brought home to the defendant in time to permit defendant to avoid the accident (Woloszynowski v. New York Cent. R. R. Co., 254 N. Y. 206; Panarese v. Union Ry. Co., 261 N. Y. 233).
But as Judge Crane noted in the latter case: “ We do not say that such knowledge may not at times be inferred from the cir[196]*196cumstances of the case ” (p. 237). As we have noted the jury was not required to accept the defendant driver’s literal version of how long she had knowledge of plaintiff’s position in the road. As to a somewhat similar contention that defendant’s driver did not actually know the peril of decedent the court in Chadwick noted (p. 181): “ Professed ignorance of the danger is not alone as a matter of law, a defense if the circumstantial evidence might show that the defendant in fact had the requisite knowledge upon which a reasonably prudent man would act ”. (See, also, Bragg v. Central New England Ry. Co., 228 N. Y. 54.)
Decisions in Woloszynowski v. New York Cent. R. R. Co. (supra); Panarese v. Union Ry. Co. (supra) and Hernandez v. Brooklyn & Queens Tr. Corp. (284 N. Y. 535) must be viewed carefully and analytically to see their true relation on this question. In Panarese it was held flatly as a matter of law that the defendant’s motorman could not under the facts of that case have had any knowledge of decedent’s peril in time to do anything about it; and in Hernandez the same finding was made.
In Woloszynowski Judge Cardoyo concluded as a matter of law that the fireman and engineer acted with reasonable dispatch after the decedent’s peril became known to them. The decision in Stanitis v. Cecere (10 A D 2d 727) and Smith v. Moskowitz (267 App. Div. 422) add nothing to the question in this case. Ñor is there anything decided in any of the cases cited which holds that the charge, even when erroneous, is .invariably to be treated as substantial error requiring reversal.
No exception was taken by defendants to the charge in relation to subdivision 1 of section 56 and section 58 of the Vehicle and Traffic Law and this purported error is not properly here for review.
The judgment should be affirmed, with costs.