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Montes v. H.C. Bohack Co., Inc.

Supreme Court of New York, Appellate Division

June 21, 1954

GLORIA MONTES et al., Respondents,
v.
H. C. BOHACK CO., INC., Appellant, et al., Defendants.

Page 449

APPEAL from a judgment of the Supreme Court in favor of plaintiffs and against defendant-appellant, entered June 26, 1953, in New York County, upon a verdict rendered at a Trial Term (BOTEIN, J.), as said judgment was amended nunc pro tunc pursuant to an order of the same court entered September 1, 1953.

COUNSEL

Archie B. Morrison of counsel (Daniel R. Harvey and Robert A. Dwyer with him on the brief; William S. O'Connor, attorney), for appellant.

Joseph Kelner for Gloria Montes, respondent.

Morris Bailinson of counsel (Paul M. Beer with him on the brief; Beer & Bailinson, attorneys), for Maria Retse, respondent.

CALLAHAN, J.

On February 23, 1952, at about 11:20 A.M., on a highway known as Route 25, one mile west of Smithtown, New York, a collision occurred between a passenger automobile

Page 450

driven by Maria Retse and a truck owned by the corporate defendant H. C. Bohack Co., Inc., and operated by its driver Fred Durr. Gloria Montes, a sister of Mrs. Retse, and a passenger in her car, was grievously injured. Mrs. Retse also suffered injuries in a lesser degree. Both sisters have recovered verdicts at the hands of a jury against the corporate defendant. The jury found in favor of Mrs. Retse as a defendant in an action brought against her by Mrs. Montes.

Prior to the collision, the Retse car was traveling in an easterly direction and the Bohack truck was proceeding westerly. The highway was a level concrete road of four lanes, two in each direction.

When the collision occurred, the Bohack truck was completely over on the righthand shoulder of the broad highway. In fact, it was against a light pole, which it had struck in trying to avoid the Retse car. The latter car had crossed over two lanes of the highway and hit the Bohack truck with force sufficient to shear a front wheel off the truck.

A third car owned by defendant Harriet S. Rosenberg and operated by Robert H. Rosenberg was traveling easterly ahead of the Retse car in the extreme right lane. The Retse car attempted to pass the Rosenberg car. At that time the Bohack truck appeared around a slight curve coming in a westerly direction. Mrs. Retse said that the truck was 'drifting' over into her lane, so that it was straddling the center dividing line of the highway. This was denied by Durr. In any event, Mrs. Retse said she attempted to ease her car behind the Rosenberg car, but instead she caused her front bumper to hook into the rear bumper of the Rosenberg car, which continued in its proper lane at its same speed. As a result of this contact or of Mrs. Retse's loss of control, her car shot across the westbound lanes and into the front of the Bohack truck which, irrespective of its prior location, had by that time been able to get over onto the right shoulder as far as it was possible to go.

The theory of Mrs. Retse and Mrs. Montes was that the Bohack truck by approaching at a rapid rate of speed, with its wheels in the same lane that Mrs. Retse's car was using, had created a threat of impending peril, and that Mrs. Retse was not guilty of any negligence, if she acted with reasonable care to avoid what appeared to be instantaneous disaster, even though her car had come into contact with the Rosenberg car as a ...


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