The title of this claim was amended at the trial with the approval of the court by the addition of ", and Michael Gordon" at the end thereof, he having attained the age of 21 on April 18, 1968, which was before the date of the trial.
In 1965 Michael Gordon was a student at Oneonta State College at Oneonta, New York, an institution of the State University of New York.
In the furtherance of his academic studies, he enrolled in a course in European History conducted by a Professor Maher. Field trips were recognized by the college authorities as proper for academic courses and on such trips students could be excused from their other classes and granted attendance and study credit for the days involved.
Such a field trip, a visit to the Cloisters Museum in New York City, was discussed and planned by Professor Maher and the students of his European History class. The date, expenses and mode of transportation were discussed. The professor advised the appropriate college authorities of the proposed trip, submitted the necessary form for approval and was granted a $25 expense allowance by the college.
The head of the Social Science Department testified that there was a college policy and regulation in the faculty handbook to the effect that only means of public transportation could be used on field trips. Professor Maher apparently knew of the existence of this rule, but apparently not known by his students -- at least not by Michael Gordon.
The initial discussion between Professor Maher and his students was to the effect that he would look into the possibility and costs of public transportation, that the college would pay the transportation and overnight lodging expenses of the students, but that the students would have to pay for their meals and incidental expenses. As a matter of fact, testimony by the head of the department was to the effect that the college would pay no part of the expenses of the students but only of the professor.
As the plans for the trip progressed, Professor Maher advised his students that public transportation would be too costly and asked whether any of the students had personal automobiles that could be used. One student offered his car. Since approximately seven were to make the trip, this would be insufficient. Accordingly, Professor Maher offered his wife's 1958 Volkswagen as the second car and asked if any of the students could drive it. Michael Gordon had some experience in driving a Volkswagen the previous summer and so he volunteered. The plans were then finalized between the professor and his students whereby the two cars would be used with Michael Gordon to drive the Volkswagen.
Professor Maher advised the college authorities in writing, a few days before the trip, that the trip was to be made by public transportation and also listed the names of the students who were to go and thus be excused from other classes. The trip was duly approved and credit and time attendance allowed to the students in question.
On October 29, 1965, the field trip began at 9:00 a.m. Michael Gordon drove the Volkswagen as planned, with the professor and two other students as passengers. They proceeded south on Route 28 toward Walton, New York, some 30 miles away. During the course of this part of the trip there was trouble with the heater of the Volkswagen -- when the heater was turned on smoke and leaves came out of it -- and it was turned off and not used until the party later left Monticello. In addition, the front wheels "vibrated", as described by Michael Gordon. The court interprets this to mean that the front wheels "shimmied". The field trip party stopped at Walton for breakfast and the Volkswagen was taken to a Pontiac body shop where a mechanic was asked to check the heater and wheels. This mechanic advised them to have a Volkswagen mechanic check the car, the nearest one being in Oneonta. Michael Gordon testified that he asked Professor Maher to go back, but that the professor said that there had been similar trouble in the past with the front wheels and that it would straighten out as it had done in the past. Before the party left Walton, one of the students who had been riding in the Volkswagen transferred to the other car. This may have been because of the lack of heat in the Volkswagen or because of the shimmying, or both.
The field trip party then continued on toward Route 17 -- the Quickway. There was further trouble with the front wheels and another stop was made at Roscoe, New York, where Professor Maher took off the front hubcaps and checked the wheel lugs and found nothing wrong. There was further checking as the trip proceeded with Michael Gordon suggesting that they turn back or that they check with a Volkswagen mechanic, and with the professor assuring him that it would straighten out as it had in the past.
The group stopped in Monticello, New York, for lunch. After lunch the field trip party continued on the Quickway toward New York City with the heater on and with front wheel shimmying being experienced from time to time. Michael Gordon testified that when they left Monticello, Professor Maher sat next to him on the front seat and went to sleep.
On one of the stops, gasoline was purchased for both cars by Professor Maher.
Near Middletown, the Volkswagen hit a seam in the highway surface and veered toward the right. This was at a location in the road where the highway route doglegged toward the left. The right front wheel went onto the right shoulder. Michael brought the automobile back onto the paved surface by turning toward the left. Then, he testified, he could not get the automobile to stay on the paved surface. Despite his efforts, it continued toward the left and went across the paved area into the center ...