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JOFFE v. UNITED STATES

February 26, 1969

Mary JOFFE, Executrix of the Estate of Solomon Joffe, a/k/a Mayer Solomon Joffe, Plaintiff,
v.
UNITED STATES of America, Defendant



The opinion of the court was delivered by: LEVET

LEVET, District Judge.

 This action arose out of a motor vehicle collision which occurred on September 30, 1964 at the intersection of Huguenot and Anderson Streets in the City of New Rochelle, New York, between an automobile driven by Solomon Joffe ("Joffe") and a post office truck driven by Frank D. Keefer ("Keefer"), defendant's agent.

 The suit was originally commenced by Joffe, who alleged that he suffered $400 in property damage to his automobile, $1,163.10 in hospital and medical expenses, and $50,000 in pain and suffering.

 Joffe died from other causes on March 11, 1967 and subsequently his widow, Mary Joffe, as executrix of the decedent's estate, was substituted as plaintiff in this action. Trial, held on November 13, 1968, under Rule 42(b) of the Federal Rules of Civil Procedure, was directed solely to the issue of liability.

 PLAINTIFF'S CONTENTIONS

 The plaintiff contends that Keefer turned left from Anderson Street onto Huguenot Street against a red light and struck Joffe's automobile which had proceeded along Huguenot Street through the intersection of Huguenot Street and Anderson Street. Plaintiff further contends that the traffic light on Huguenot Street was green in Joffe's favor, that Keefer, driving north on Anderson Street, failed to maintain a proper lookout while turning, and that Keefer failed to yield the right of way to Joffe.

 DEFENDANT'S CONTENTIONS

 The defendant contends that Keefer was not negligent and that the accident resulted solely from the negligence of Joffe, who ran through a red light at the intersection of Huguenot and Anderson Streets, thereby striking the post office truck driven by Keefer, who had carefully made a left turn from Anderson Street onto Huguenot Street when the traffic light was in favor of Keefer.

 The case was tried to the court without a jury.

 After hearing the evidence submitted by the parties, examining the exhibits, the pleadings, the briefs and Proposed Findings of Fact and Conclusions of Law submitted by counsel, this court makes the following Findings of Fact and Conclusions of Law.

 FINDINGS OF FACT

 1. Huguenot Street is a one-way, four-lane street, solely for westward traffic (12, 15; *fn1" Deft. Ex. A), with no parking permitted on either side (14, 161; Keefer Dep. p. 14); Anderson Street is a one-way, two-lane street, solely for northward traffic (Joffe Dep. p. 26; 71, 140) and terminating at Huguenot Street (Deft. Ex. A), at which intersection there are traffic lights on both sides of Huguenot Street (80, 157). All traffic going north on Anderson Street must turn left on Huguenot Street and proceed west (Deft. Ex. A).

 2. On September 30, 1964, at approximately 2:30 P.M., Keefer, driver of defendant's post office truck, after stopping before a red light, drove out of Anderson Street on a green light from the left lane after signaling a left turn with his directional signal, looking to the right, and after seeing no automobiles proceeding along Huguenot Street. Keefer then began to turn left into Huguenot Street at a rate of five to eight miles per hour. He heard no horn before the impact (77, 78, 98, 99, 100, 163).

 3. On September 30, 1964, at about 2:30 P.M., Joffe was proceeding west on Huguenot Street. "With his left eye" Joffe noticed the post office truck when Keefer was halfway in Anderson Street and when he himself was "a half block down." Assuming that the post office truck would stop for the light (25), Joffe drove through the red light intersection of Huguenot and Anderson Streets at a rate of 30 to 35 miles per hour. At a point on Huguenot Street in the extreme left lane, just past the intersection of Anderson Street, the right front fender of defendant's post office truck collided with the left rear fender of the Joffe car (121, 123, 124, 129-132, 134, 135, 155, 166, 167, 180).

 4. After the impact, the defendant's truck came to rest against the south curb of Huguenot Street approximately 50 feet from the corner and the Joffe car was some distance down the street with its front end through a plate glass window (46).

 5. The point of impact was the rear portion of the left rear door and the adjacent portion of the rear left fender of the Joffe car (see Pl. Exs. 12, 13), and the point of impact on the truck was the front right bumper and fender (Stipulation, 60). Keefer testified that he had not seen the Joffe car before the impact (48, 49), that he had not negotiated a full turn, and that he could not see the Joffe car because he was "blind on the right side" (44).

 6. Although Joffe was negligent in passing the red light at the intersection of Huguenot Street, this was not the proximate cause of the accident and, hence, his negligence does not bar recovery.

 7. Keefer, driver of the truck, was negligent in entering the intersection and in failing to see the Joffe car. He is, therefore, responsible for the rear end collision with Joffe's car which thereupon occurred.

 DISCUSSION THE TESTIMONY PLAINTIFF'S CASE

 THE JOFFE DEPOSITION

 Joffe, in his deposition taken on September 7, 1966, did not remember if he stopped on Huguenot Street, a block away from Anderson Street (17, 18). He said that he was proceeding in the left lane at about 20 miles per hour (19) and that there were cars ahead of him (20). He stated that he saw the light for the first time "when he was halfway up the block" (21, 22). He testified that he saw the post office truck with his "left eye" when Keefer "was halfway in Anderson Avenue". Keefer "was in the middle of the block" when Joffe first saw him (22).

 Joffe testified that the impact occurred on the rear door and rear fender of his car; that the front of his car was then "past the intersection": and that his car was in the extreme left lane (23). Joffe also said he first saw the truck "about half a block down" approaching Huguenot Street (24). At that time Joffe "figured he [Keefer] was going to stop for the light" (25).

 THE KEEFER DEPOSITION

 Portions of the deposition of Keefer, read by plaintiff, were in ...


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