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April 19, 1954


The opinion of the court was delivered by: CONGER

Plaintiff sues for personal injuries claimed by him to have been received when he was struck by an army truck.

Date of accident was in the early afternoon of December 2, 1949. Place of accident: At the entrance of the Pennsylvania Railroad Station, Seventh Avenue, New York City.

Claimed cause of injuries: Struck by an army automobile operated by Anthony R. Vuolo, a corporal in the United States Army.

 Plaintiff, aged 45 at the time of the accident, usually worked around the Pennsylvania Station carrying baggage and parcels for persons either entering or leaving the Pennsylvania Station. He claims that at the time and place mentioned above he was carrying a bag for a woman who was going to the Long Island Railroad Station, which is part of the Pennsylvania Station; that he was walking with the woman north on Seventh Avenue; that the place where he claims he was struck is at the vehicular entrance to the station. At the place where these entrances start there are large stone or concrete pillars. In order for an automobile to get into the station it has to pass over the sidewalk and enter the driveway between two of these large pillars. The entrance is not wide. At the trial it was agreed that the one which defendant's car entered was 9' 11" wide. There are three such entrances (each guarded by a pillar) which may be designated as the south entrance, the middle entrance and the north entrance. Plaintiff claims he and the woman had passed the south entrance and the central entrance and were standing on the sidewalk in front of the northern column of the central entrance and that as they stood there an army carryall automobile coming south on Seventh Avenue at too great a rate of speed under the circumstances turned to go into the central entrance and made too sharp a turn so that the right rear of the automobile struck plaintiff and pushed him against the pillar; that he was not knocked down nor dragged.

 The driver of the army truck, while admitting that about this time he did drive into this entrance, claims that he stopped just before he entered and before he reached the pillars; that he started up again; that he felt no bump and heard no outcry; that in substance he struck no one.

 The story of plaintiff and that of the driver of the army automobile differs in many respects. They may not be reconciled.

 Plaintiff, himself, was not consistent in his story in several respects. For example, in the first claim he made he stated he and the woman were walking south on Seventh Avenue. At the trial he testified they were walking north. Why the change I do not know. It was not important which way they were walking. He also claims that the driver of the car did not stop before reaching the pillar and then start up.

 Nevertheless, I am satisfied that the accident took place and that plaintiff was struck by the rear end of the army car. Plaintiff's actions after he claimed he was struck confirm this. He followed the army automobile down the ramp and caught up with it at the Military Police booth at the end of the ramp, where he spoke to the driver (Vuolo), who was still in the car and said to him in words or substance, 'Do you know you hit me back there?'

 Vuolo then directed the plaintiff to the Military Police booth. Plaintiff again repeated to the officer in charge of being hit by the army car and was thereupon sent to the first aid station in the railroad station and from there he was sent by ambulance to St. Vincent Hospital where he remained until some time in the evening and was later sent home. The hospital records show that plaintiff was treated at the hospital at 3:19 P. M. The hospital records also contain this entry: 'pt. says he was hit by an army truck.'

 The hospital records also confirm the fact that plaintiff was injured. They indicate that the diagnosis was, 'Contussions of Rt. thigh.'

 Plaintiff testified that later in the evening at the hospital he identified Vuolo as the driver of the truck which hit him. Vuolo, however, testified that the same evening, with the soldier who had been his companion in the car, he was taken to the hospital by Captain Jackson, his commanding officer, and that plaintiff there failed to identify him.

 Vuolo testified that what actually happened was that Vuolo and his companion walked up to plaintiff, who was lying down on the emergency table and that plaintiff then said (and that was all that was said), 'A couple of soldiers hit me back there at the Penn Station.'

 From the above I have come to the conclusion that plaintiff was standing in the vicinity of the pillar, as he stated, and that he was struck by the army car driven by Corporal Vuolo.

 Having come to this conclusion, I think that a fair inference is that the striking of plaintiff was caused and brought about by the negligence and want of care of the driver of the truck. This was a very busy spot. The vehicular traffic in order to get to the station had to cross this sidewalk. Also, the driveway was narrow -- 9' 11" wide and the car was 7' wide. There was not a great deal of clearance. The driver of the car said he went in on a slant. My inference, and I think it is a justifiable one, is that the right rear of the car was too close to the pillar to allow it to clear a pedestrian who might be standing on the walk near the pillar, where plaintiff says he was. I do not hold that the car was being driven too fast but I do hold that the driver of this car going into this narrow driveway on a slant failed to observe plaintiff and failed to so operate his car at this time and place so as to avoid striking plaintiff. To be more explicit I think the driver of the army automobile went too close to the pillar with the right rear of the car. Vuolo testified that as he entered the driveway there were a number of people near the column; that there was not much room to swing; that he had to stop; that he did stop just before he got to the pillar; that he saw ...

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