The opinion of the court was delivered by: BYERS
The plaintiff Raymond E. Dilg, and his wife, Billie H. Dilg, were injured on June 15, 1953 at about 2:45 p.m., while riding as passengers in a taxicab en route from Idlewild to a New York hotel.
The cab was driven by the defendant Chametznik which struck a private car ahead (Plymouth) driven by defendant Prichep, who was in the employ of R. C. Williams & Co., Inc., at the time he was pursuing the course of his duties as salesman.
The place of the collision was the Van Wyck Expressway in the County of Queens, within this District, at a point about 150 to 200 feet beyond the turnoff at 87th Street, which provided access to Queens Boulevard leading to Long Island City; the latter was the destination of Prichep.
He was proceeding in the extreme left of three lanes in the northbound section of said highway, when his car was struck in the right rear by the left front of the taxi, with such force that Prichep's car was driven on to the adjoining mall which separates the northbound from the southbound traffic, and was spun around to its own left and came to rest facing in a southerly direction.
As to the fact of collision, there is no controversy; the only issue to be decided is whether the Plymouth had come to a stop without warning to any following car so abruptly that the taxi crashed into it, because the driver of the latter was unable to avoid so doing.
A finding is necessary as to that aspect of the case.
The evidence has been studied in the effort to resolve the conflicting testimony of the drivers of the two cars, and the only persons who were called to trial as eye witnesses of what took place, namely, James Halpin called by the plaintiffs, and Mrs. Agnes Dark called by the defendant Prichep.
The allegations of the amended complaint show that the plaintiffs undertook to prove that their injury was caused 'solely and wholly by the negligence of the defendants and each of them * * *.'
As to the negligence of Chametznik, there is little occasion for discussion. His testimony is that having taken his passengers at the Airport, namely, the plaintiffs and their daughter and a pet dog, he proceeded toward his destination, using the Van Wyck Expressway, and prior to the accident was driving in the center of the three lanes.
It should be said that the day was fair, and weather conditions played no part in the collision. A short time before the collision, Chametznik observed the Prichep car passing him to his left; he fell in behind for the purpose of passing a car which was immediately in front of his taxicab in the center lane; then, when in the left lane, he trailed Prichep's car, as he said, for two or three minutes. The speed of the taxi according to Chametznik's testimony could not exceed 45 m.p.h. because of a governor which restricted him to that rate.
It is clear then that Chametznik knew that the Plymouth car was ahead and he followed it, as he says, at a distance of about 40 or 50 feet, at the speed above stated. His testimony is that when the Plymouth had proceeded about 150 to 200 feet beyond the turnoff at 87th Street, it came to a full stop without warning to him, that is, there was no hand signal made by Prichep nor was there a flash of stop lights on the rear of the Plymouth car; he says that the stop was so abrupt that he was unable to avoid crashing into the Prichep car.
It should be noted that the 78th Street turnoff is available to cars proceeding in the right-hand lane. Prichep was familiar with this turnoff and had used it on several prior occasions, and it is therefore reasonable to infer that if he had intended to then leave the Van Wyck Expressway, he would have been proceeding in the right-hand lane.
There is no testimony that the rear stop lights in the Plymouth car were out of order, which means that the failure of Chametznik to observe their red flash is consistent only with a continued forward movement of the Plymouth car at the moment of impact. This is another way of saying that in my opinion Prichep's car had not come to a stop prior to the collision; if it had, Prichep would have had to apply his brake to accomplish the purpose, since he was driving at about 30 to 35 miles per hour. If the brake had been applied, the red stop light would have automatically flashed a warning to a following car, and as above stated, Chametznik said that none appeared.
It is argued for the plaintiffs that the court should ascribe to Prichep a preoccupation based upon his having inadvertently proceeded beyond the 87th Street turnoff, and in order to remedy his position when he realized this, he came to a stop. That does not make sense, as the evidence is presently understood. If it be true that he had unconsciously passed beyond the 87th Street turnoff, he could not hope to retrieve his error by stopping in the extreme left-hand lane; to meet this reasoning, it is further urged that according to his testimony, he was intending to leave the Van Wyck Expressway at a newly opened turnoff which was an undisclosed distance beyond 87th Street. That is purely argumentative, and has no ...