Kowchefski v. Urbanowicz

102 A.D.2d 863, 477 N.Y.S.2d 47, 1984 N.Y. App. Div. LEXIS 19068

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 18, 1984
• Status: Published

Opinion

— In a negligence action, plaintiffs appeal from a judgment of the Supreme Court, Nassau County (Pantano, J.), dated December 1,1983, which dismissed the complaint, upon a jury verdict. 11 Judgment reversed, on the law, and new trial granted, with costs to abide the event, f In this action, involving a “hit in the rear” collision between motor vehicles proceeding in the same direction, it was error for the trial court to charge the “emergency” doctrine. Plaintiff John V. Kowchefski (hereinafter plaintiff) and defendant were proceeding with the flow of moderately heavy traffic at about 15 miles per hour when plaintiff stopped his vehicle. Defendant contended that plaintiff stopped suddenly, that she could not see why plaintiff stopped because his vehicle, a Ford Suburban pickup truck, was bigger than her car, that she was judging her driving by plaintiff’s vehicle, and did not see any brake light or anything, and that she tried to avoid plaintiff but could not. Plaintiff, on the other hand, contended that he stopped because the cars in front of him stopped, that he was stopped for about five seconds when his vehicle was hit, that he did not stop short, and that defendant’s negligence in the operation of her vehicle caused the accident. While it was a question of fact for the jury whether there was a short stop by plaintiff or whether the defendant was following too closely, or failed to see what was there to be seen, it was error to charge the standard of care applicable in an “emergency situation” since there were no facts presented at the trial upon which a jury could properly find that defendant was responding to an emergency situation (Demme v Elmer J. Fogerty, Inc., 47 AD2d 851). Rubin, J. P., Boyers, Lawrence and Fiber, JJ., concur.