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RAPHAEL ORTIZ v. KINOSHITA & CO. (07/11/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 1968.NY.42591 <http://www.versuslaw.com>; 292 N.Y.S.2d 48; 30 A.D.2d 334 July 11, 1968 RAPHAEL ORTIZ, RESPONDENT,v.KINOSHITA & CO., LTD., ET AL., APPELLANTS Appeal from an order of the Supreme Court, in favor of plaintiff on the issue of liability, entered February 5, 1968 in New York County upon a verdict rendered at a Trial Term (Thomas C. Chimera, J.), which directed an assessment of damages. William F. McNulty of counsel (J. Robert Morris, attorney), for appellants. Benjamin H. Siff of counsel (Morris Eisen, attorney), for respondent. McNally, J. Steuer, J. P., Capozzoli and Rabin, JJ., concur with McNally, J.; McGivern, J., dissents in opinion. Author: Mcnally


Appeal from an order of the Supreme Court, in favor of plaintiff on the issue of liability, entered February 5, 1968 in New York County upon a verdict rendered at a Trial Term (Thomas C. Chimera, J.), which directed an assessment of damages.

McNally, J. Steuer, J. P., Capozzoli and Rabin, JJ., concur with McNally, J.; McGivern, J., dissents in opinion.

Author: Mcnally

 In this action for personal injuries, defendants appeal from an order directing an assessment of damages following a verdict for plaintiff on the issue of liability.

On November 28, 1963, at about 4 a.m., plaintiff was operating his bicycle in an easterly direction on the left hand, northerly side of the 97th Street transverse road of Central Park in the Borough of Manhattan. Defendants' automobile was proceeding westerly and collided with plaintiff's bicycle. It is undisputed that plaintiff and his bicycle were on the left side. The evidence presented an issue of fact as to whether the bicycle was equipped with a light.

Subdivision (a) of section 1234 and subdivision (a) of section 1236 of the Vehicle and Traffic Law read as follows:

"§ 1234. Riding on roadways and bicycle paths. (a) Every person operating a bicycle upon a roadway shall ride as near to the right side of the roadway as practicable, exercising due care when passing a vehicle or bicycle standing or proceeding in the same direction.

"§ 1236. Lamps and other equipment on bicycles. (a) Every bicycle when in use during the period from one-half hour after sunset to one-half hour before sunrise shall be equipped with a lamp on the front which shall emit a white light visible for a distance of at least five hundred feet to the front and with a red reflector on the rear of a type approved by the commissioner which shall be visible from all distances from fifty feet to three hundred feet to the rear when directly in front of lawful upper beams of head lamps on a motor vehicle. A lamp emitting a red light visible to the rear may be used in addition to the red reflector."

The trial court's charge, duly objected to, submitted to the jury for its determination the issue whether plaintiff's violation of said statutes constituted negligence. This was substantial error. The violation of section 1234 is undisputed, and plaintiff denied violation of section 1236. Defendants were entitled to a charge that plaintiff's violation of section 1234 constituted negligence; in addition, if the jury found plaintiff's bicycle was without a lamp, he was in violation of section 1236 and, therefore, negligent in both respects. However, the fact that plaintiff was negligent does not mean that his negligence bars him from recovery. It must also appear the negligence was a proximate or contributory cause of the accident. In the case at bar, the statutory violations were prima facie contributory negligence, to be overcome by plaintiff. (Martin v. Herzog, 228 N. Y. 164; Rees v. Grandelli, 28 A.D.2d 565, affd. 21 N.Y.2d 946.) The jury should have been told not only that the violations of the statute constituted negligence on the part of plaintiff "but that it was ' prima facie evidence of contributory negligence', i.e., that it was sufficient in itself unless its probative force was overcome * * * to sustain a verdict that decedent was at fault." (Martin v. Herzog, supra, p. 171.) The minority opinion fails wholly to distinguish or ignores the distinction between negligence and negligence which contributed to the happening of the accident, and by disjunctive phrasing, purports to find a lack of clarity herein when none really exists. Suffice it to say we have outlined the correct charge with particularity if the cause is retried. As for the statement in the minority that "this is not a Martin v. Herzog case, factually", the record demonstrates beyond peradventure that the learned Trial Justice showed comprehensive knowledge of the principle stated therein by Judge Cardozo and made a commendable effort to apply those principles in his charge. Circumstances are not present suggesting that compliance with the statutes would have aggravated rather than reduced the risk of an accident. (Cf. Tedla v. Ellman, 280 N. Y. 124.)

The record indicates the jury was confused on the subject of contributory negligence, since the following question was submitted to the court some two hours after the jury began its deliberations: "The jury would like to have approximate [meaning proximate] cause explained to them again. We would like to have contributory negligence explained also." The learned court charged on the subject and the jury again retired. Some four and one-half hours later, it transmitted a second note to the court, reading as follows: "The jury would like a clarification and amplification of what appears to them to be a contradictory instruction, viz: 'Negligence, however slight' on the part of the plaintiff, will be sufficient to bar recovery, providing it is substantial". The additional charge in response fell just short of the mark.

We have had occasion recently to address ourselves to the subtleties inherent in the use of the word "substantial", since they are often so fine, tenuous and delicate they elude perception or understanding. In this connection, on the issue of proximate cause, we held, in Bacon v. Celeste, 30 A.D.2d 324, 325, 326 (Eager, J.) as follows:

"The term 'substantial factor' may be used in a charge in a negligence case only in relation to a proper and adequate discussion of the issue of causal relation or proximate cause. In this connection, the term 'substantial' is used to denote the fact that negligence, in order to support a recovery, should have 'such an effect in producing the harm as to lead reasonable men to regard it as a cause'. (Restatement, 2d, Torts, vol. 2, § 431; see, also, PJI 2:35, p. 128; Klein v. Herlim Realty Corp., 184 Misc. 852, affd. 269 App. Div. 934; Waterman v. State of New York, 19 A.D.2d 264, affd. sub nom. Williams v. State of New York, 14 N.Y.2d 973.) Thus it may be technically correct to say that contributory negligence is not considered as a proximate cause of a plaintiff's injury unless it was a 'substantial factor' in producing the injury, but it is also true that any negligence on the part of a plaintiff which contributes to cause the injury, precludes a recovery by plaintiff whether or not such negligence is 'substantial' in a degree. The subtleties involved in such a statement, without elaboration, are, however, too refined to be grasped by the ordinary jury.

"Although a charge may be substantially correct as stating the applicable law, it is important that it be reduced to terms likely to be understood by the jury. (See Cohon & Co. v. Pennsylvania Coal & Coke Corp., 10 A.D.2d 667.) Where, as here, a charge is so inadequate or of so confusing a character as to preclude fair consideration by the jury, a resulting judgment will be reversed and a new trial ordered in the interests of justice. (See Molnar v. Slattery Contr. Co., 8 A.D.2d 95, 100; U. S. Vitamin & Pharm. Corp. v. Capitol Cold Stor. Co., 21 A.D.2d 661.)"

We believe that the jurors' questions should have been answered in conformity with the above, and the ...


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