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June 6, 1955

Robert MARINO, an infant under the age of fourteen years, by his guardian ad litem Joseph Marino, Joseph Marino, Richard Catricala, an infant over the age of fourteen years, by his guardian ad litem Frances Catricala, and Frances Catricala, Plaintiffs,
Harold J. KANE, Defendant. Robert MARINO, an infant under the age of fourteen years, by his guardian ad litem Joseph Marino, Joseph Marino, Richard Catricala, an infant over the age of fourteen years, by his guardian ad litem Frances Catricala, and Frances Catricala, Plaintiffs, v. UNITED STATES of America, Defendant

The opinion of the court was delivered by: KAUFMAN

In these consolidated actions Robert Marino and Richard Catricala, by their guardians ad litem, seek damages for injuries sustained by them when they were struck by a Post Office vehicle owned by the defendant, United States of America, and operated on its behalf by the defendant Harold Kane. In addition, a parent of each child sues to recover for loss of services and expenses resulting from the injuries to the children.

On July 18, 1950, at about 3:30 P.M., Robert, then approximately five years of age, and Richard, then fifteen years of age, together with Joseph and Alice Marino, the parents of Robert and the aunt and uncle of Richard, alighted from a bus on the east side of Edward L. Grant Highway near its intersection with 170th Street, in the Borough of Bronx, City and State of New York, and commenced to cross the highway from east to west. At the time they commenced crossing the north bound lane of Grant Highway, the traffic signals were red for traffic on the Highway. They safely reached the elevated safety island which divided the north and south bound lanes of the Highway, at a point some distance south of its intersection with 170th Street. Joseph Marino, carrying Robert's baby brother in his arms, proceeded from the safety island to cross the south bound lane of the highway to the west curb. At about this time, there were two vehicles proceeding south on the highway. One was the government truck, operated by the defendant Harold Kane, which was traveling in the lane immediately adjacent to the safety island. The other was a privately owned automobile which was proceeding in front of the government truck and in a lane to the right of the lane in which the government truck was traveling.

In had stopped raining a short time before the accident and the road was wet. The private car suddenly applied its brakes and was forced into a skid, as a result of which it made approximately one turn, and in so doing moved towards the lane in which the Post Office vehicle was traveling. The driver of the government truck, observing this, applied his brakes and swerved so that the front of his truck veered to the right and the rear to the left. As a result, the rear of the truck overlapped the island and struck the two infants who were standing upon the safety island.

 I shall first deal with the controversy over the cause of the sudden application of the brakes by the private automobile. Joseph Marino testified that while he was crossing the south bound lane of the highway from the safety island to the west curb he observed both the Post Office truck and the private automobile at a standstill at the intersection. He testified that when he reached the west curb he observed both vehicles for a sufficient time to be able to approximate the speed of the truck and to estimate the distances between both vehicles before the private car braked. He testified that he saw the brakes applied by the private automobile and the skidding and also saw the truck mount the safety island but did not see or know what caused the automobile to brake. So far as he observed, he testified, the automobile applied its brakes for no apparent reason. He saw no persons, cars or obstacles in the private automobile's path. Similarly, Richard Catricala was unable to give a reason for the application of the brakes.

 On the other hand, Kurt Reich, the driver of the private automobile, testified to the more probable and credible version. He stated in contradiction of Joseph Marino that he did not stop for a light at the intersection *fn1" and that he had to apply his brakes because Joseph Marino *fn2" suddenly crossed into the path of his automobile. It is to be recalled that Joseph Marino testified that he sufficiently observed the situation to be able to approximate speeds and distances and to state that no obstacles were in the private automobile's path, but that the automobile applied its brakes for no reason apparent to him. This taxes credulity. The brakes were applied with such force as to turn the car approximately 180 degrees. It is not likely that Reich would be forced to do this without some obstacle suddenly looming before him. I am impelled to the inescapable conclusion that Reich was forced to take this action by the conduct of Joseph Marino who crossed into his path.

 Joseph Marino's testimony as to his location in the south bound lane when the light changed wavered from one-fourth to three-fourths of the way past the safety island towards the west curb. Even if we are to assume that the light had just changed green for pedestrians when Joseph Marino began crossing from the bus stop to the safety island -- a fairly long distance -- it is most probable that the light was in process of changing when Mr. Marino first reached the safety island. This reasonably explains the reason for his wife waiting behind on the island with the two children and not attempting to cross from the safety island to the west curb, as did Marino. I believe Marino decided to 'chance it' across. Under all the circumstances -- and being mindful of the wet pavement -- his conduct was clearly negligent. His negligence definitely contributed to the accident. I, therefore dispose of Joseph Marino's claim at the outset and find that he, in his individual capacity, is barred from recovering damages for any loss of services or expenses sustained by him as a result of the injuries to his son Robert.

 We now approach the question of the defendants' negligence. Defendant Harold Kane, the driver of the government truck, testified that he was proceeding at approximately 25 miles per hour at the time of the accident -- the maximum speed limit -- and admitted that he could have been going in excess of 25 miles per hour since the speedometer in his truck was not working. I believe it more probable that he was exceeding 25 miles per hour. He testified that he kept the same distance between his truck and the private automobile for about four blocks before reaching the intersection; that the automobile was probably going over 25 miles per hour, and that he did not stop for a light at the intersection. *fn3"

 Reich, it is recalled, testified that immediately before the accident the truck was about to overtake him. The truck was in the far left or passing lane of the highway. Under the conditions prevailing at the time and place of the accident -- a wet, cobblestone road, on a down grade -- I find that the speed which Kane maintained immediately before the accident and his conduct in attempting to overtake the private car constituted negligence. Even if the version of the government that the defendants were proceeding at the 25 mile speed limit were accepted, I believe that under the adverse road conditions which prevailed at the time of the accident, maintaining such a speed would constitute negligence. In the instant case, however, I find that Kane exceeded the speed limit prior to the application of his brakes. I also find that the negligence of the defendants was a proximate cause of the accident. I believe that had Kane maintained a reasonable speed in the light of the road conditions, it is probable that he would have been able to control his truck and have avoided the accident. Furthermore, it is recalled that there was at least a space equivalent to the dimensions of one car between the right of Kane's truck and the left of Reich's automobile when Reich's car came to a stop. Hence, one questions the reasonableness of Kane's conduct in operating the truck as he did in attempting to avoid contact with Reich's car.

 I find, therefore, that damages are recoverable on behalf of both infants. No question of contributory negligence on the part of either of the infants has been presented in this case. Of course, the contributory negligence of Joseph Marino cannot be imputed to Robert Marino, so as to bar Joseph Marino's action as guardian ad litem on behalf of Robert Marino. N.Y. Domestic Relations Law, McKinney's Consol.Laws, c. 14, § 73.

 We shall now turn to the damages recoverable on behalf of Robert Marino. It is contended that Robert sustained permanent organic brain damage as a result of the accident. The existence of such brain damage is the most sharply contested issue in the case. Joseph Marino testified that Robert was propelled a distance of about 25 feet and was rendered unconscious for about five minutes. He also testified that prior to the accident his son Robert had been a normal child and that after the accident he became a behavior problem. Specifically, Joseph Marino testified that his son now stutters, has facial grimaces, moans in his sleep, and is a behavior problem in school to the extent that the school authorities referred Robert for psychiatric guidance. Mrs. Marino substantially reiterated the testimony of her husband. It is contended that this testimony indicating that Robert was psychologically normal before the accident and psychologically abnormal after the accident coupled with the medical testimony to be discussed later clearly proves that the extent of psychological abnormality now manifest in Robert resulted from permanent organic brain damage proximately caused by the accident, or from some head *fn4" injury less serious than permanent organic brain damage.

 On the other hand, defendants contend that Robert sustained no permanent organic brain damage or head injury and that whatever neurotic behavior he presently exhibits preexisted the accident and was caused by the adverse environmental conditions to which he was exposed throughout his formative years. The defendants mainly rely to support their contention upon Joseph Marino's testimony as to the conditions existing in the home. Joseph Marino testified substantially as follows: From 1944 until 1952, he, his wife and Robert, born in 1945, lived in the same home with his mother, divorced sister and her two children. Relations between Mrs. Marino and her mother-in-law were extremely strained. They had frequent fights and the police were called on occasion. These quarrels mainly centered upon the proper upbringing of Robert. Mrs. Marino also had strained relations with her sister-in-law. Furthermore, on at least one occasion Mr. Marino contemplated leaving his wife. Robert personally observed many of these intra-family quarrels. The family lived under conditions of poverty; Joseph Marino being unemployed and on relief for extended periods of time. Mrs. Marino gave birth to Robert at the age of seventeen. She had some difficulties with the law at the age of thirteen. She suffers from a seizure pattern and has had many fits and seizures some of which her son Robert observed. It is noted that Robert testified that his mother became as hard as stone during these attacks and that this scared him.

 From other evidence in the case, it is evident that both Mr. and Mrs. Marino were and are mentally inadequate. Mrs. Marino has an I.Q. of 75; Mr. Marino has an I.Q. of 50. Based upon this testimony indicating that Robert as an impressionable youth in his formative years has been reared in his grandmother's home by mentally inadequate parents, one parent suffering from a seizure or convulsive disorder, in an environment of poverty and strained family relations where constant strife was witnessed by the youth, and upon the medical testimony of the defendants, to be discussed later, the defendants urge that Robert's behavior problems resulted from his background rather than from any brain damage or head injury sustained by him in the accident.

 The plaintiffs called Drs. Horowitz, Stanton and Madonick as expert witnesses. Dr. Horowitz testified that he examined Robert on December 12, 1950 and again as recently as May 1955. He testified that at the time he first examined Robert he observed that Robert was a hyperactive child who occasionally manifested facial grimaces, twitches, hesitancy in speech and awkwardness in walking. He testified that aside from the speech hesitancy his recent examination of Robert indicated that the previously observable symptoms had disappeared. His conclusion was that Robert sustained permanent brain damage as a direct result of the accident and that his behavior pattern was not the result of his home environment but was due to the brain damage. He testified that his conclusion as to permanent brain damage was based primarily upon the fact, testified to by Mr. and Mrs. Marino, that Robert was rendered unconscious for approximately five minutes as a result of the accident and secondarily upon the electro-encephalograph (hereafter E.E.G.) examination of Robert. The E.E.G. is a mechanical charting of the rhythm and intensity of electrical impulses emanating from the brain. By observing the pattern of recorded electrical impulses certain inferences as to the probable condition of the brain may be drawn. All of the doctors who testified stated that an E.E.G. is merely a tool with respect to brain conditions but cannot be utilized per se for definitive diagnosis.

 Dr. Stanton, a psychiatrist, examined Robert on November 2, 1954. He testified that the only objective manifestation which he observed was that Robert appeared irritable. The doctor testified that he based his conclusion that Robert is currently suffering from a permanent neurosis competently produced by brain injuries which resulted from the accident largely upon the following history related to him by Mrs. Marino: Robert was rendered unconscious as a result of the accident and subsequent to the accident he began to moan in his sleep, developed headaches, and became over-active, aggressive and destructive. In addition, the doctor testified that he based his conclusion upon the E.E.G. report and a report of an examination conducted by a clinical psychologist of the government. In ...

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