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CLAIRE E. PETERS v. ALFRED GERSCH (05/27/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT 1969.NY.41746 <http://www.versuslaw.com>; 300 N.Y.S.2d 156; 32 A.D.2d 122 May 27, 1969 CLAIRE E. PETERS, RESPONDENT,v.ALFRED GERSCH, APPELLANT, AND JACK V. NEARING, RESPONDENT. (ACTION NO. 1.); JACK V. NEARING, RESPONDENT, V. ALFRED GERSCH, APPELLANT. (ACTION NO. 2.); ALFRED GERSCH ET AL., APPELLANTS, V. JACK V. NEARING ET AL., RESPONDENTS. (ACTION NO. 3.) Appeals (1) from judgments of the Supreme Court in favor of plaintiffs in Actions Nos. 1 and 2, entered May 20, 1968 and May 22, 1968 and a judgment of the same court in favor of defendants in Action No. 3, entered May 15, 1968 in Delaware County upon verdicts rendered at a Trial Term (David F. Lee, Jr., J.) and (2) from orders of said court, entered June 17, 1968 which denied defendant's motions in Actions Nos. 1 and 2 and plaintiffs' motions in Action No. 3 to set aside the verdicts. Levene, Gouldin & Thompson (Paul C. Gouldin of counsel), for Alfred Gersch, appellant in Actions Nos. 1 and 2. Cooke & McBride (John S. McBride of counsel), for Claire E. Peters, respondent in Action No. 1. Alfred Schleider for Jack V. Nearing, respondent in Actions Nos. 1 and 3 and Claire E. Peters, respondent in Action No. 3. Levine, Williams & Newman (Marvin A. Newman of counsel), for respondent in Action No. 2. Richard H. Farley for appellants in Action No. 3. Herlihy, J. Gibson, P. J., Staley, Jr., and Greenblott, JJ., concur with Herlihy, J.; Reynolds, J., dissents and votes to reverse and order new trials, in an opinion. Author: Herlihy


Appeals (1) from judgments of the Supreme Court in favor of plaintiffs in Actions Nos. 1 and 2, entered May 20, 1968 and May 22, 1968 and a judgment of the same court in favor of defendants in Action No. 3, entered May 15, 1968 in Delaware County upon verdicts rendered at a Trial Term (David F. Lee, Jr., J.) and (2) from orders of said court, entered June 17, 1968 which denied defendant's motions in Actions Nos. 1 and 2 and plaintiffs' motions in Action No. 3 to set aside the verdicts.

Herlihy, J. Gibson, P. J., Staley, Jr., and Greenblott, JJ., concur with Herlihy, J.; Reynolds, J., dissents and votes to reverse and order new trials, in an opinion.

Author: Herlihy

 This is an appeal in Actions No. 1 and No. 2 from judgments of the Supreme Court in favor of the plaintiffs, entered May 20, 1968, in Delaware County, upon a verdict rendered at Trial Term, and from orders of said court entered June 17, 1968, which denied defendant's motions for judgment notwithstanding the verdict and for a new trial, and an appeal in Action No. 3 from a judgment for the defendants entered in the same court on May 15, 1968, and an order denying plaintiffs' motions for judgment notwithstanding the verdict and for a new trial.

The accident happened on May 1, 1965 at about 11 p.m. on Route No. 28 between Andes and Delhi in an area known as Meeker's Curve. It was a clear night and the road was dry. The Cadillac automobile owned by Gersch was proceeding in the direction of Delhi and the 1960 Corvair operated by Nearing was proceeding in the direction of Andes. At Meeker's Curve, the road was approximately 44 feet wide and divided by a double line.

Claire Peters was a passenger in a Corvair automobile owned by Henry G. Peters and operated by Jack V. Nearing.

Alfred Gersch was the owner and operator of a Cadillac automobile in which Margaret Gersch and Minna Gersch were passengers.

There were no eyewitnesses to the accident except the people riding in the two automobiles and following the collision they were unable to give any details of what happened. The occupants of each automobile claimed that the collision occurred on their side of the road. The defendant (plaintiff) operator Gersch claimed to be "blinded" just prior to impact and Nearing claimed that the Gersch automobile when very close to his approaching automobile came over to his side of the road. On the basis of this testimony the credibility and weight to be given the evidence were jury questions and the verdicts would stand unless the testimony and photographs relating to the physical evidence of the accident (skid marks, gouge marks, etc.) render the verdicts against the weight of the evidence.

The appellant Gersch at the trial, on the motions to set aside the verdicts, and on this appeal forcefully contended that certain physical markings made on the pavement and shown in various photographs unequivocally demonstrate that the accident happened on his side of the road and, therefore, the verdicts are against the weight of the evidence and must be set aside.

There are photographs in evidence which show gouge marks and the beginning of so-called gasoline markings on the Gersch side of the divided center line. The gasoline markings continued across to the Nearing side of the road and some 51 feet down to where the Corvair came to rest. The photographs, many in number, were marked by various witnesses who also testified as to their meaning. There were various measurements made and explained with reference to the markings, the locations of the automobiles following the collision and other pertinent locations. It can be stated without fear of contradiction that aside from the medical, the major portion of the testimony of this three weeks' trial related directly or indirectly to these physical markings on the pavement. As to what these markings meant and their relation to the collision, there were different theories and arguments so that the jury of necessity had a full and complete understanding of where these marks were on the highway, how they supposedly got there and explanations of what they demonstrated as to the happening of the accident. It should be here noted that Gersch contended that the collision did not take place where the gouge marks were made, but some feet distant therefrom. Nearing contended that the Gersch car was on his side of the road at the time of the collision and that the marks evidence such fact. A State Trooper testified that if certain tire skid marks were made by the Cadillac as Gersch contended, then where the gouge marks were made, the front end of the Cadillac would be over the center line and on Nearing's side of the road. None of the parties know how their respective automobiles came to a stop after the collision. Nearing's automobile was on its own side of the road approximately 51 feet back from the gouge marks while Gersch's automobile was on Nearing's side of the road approximately 37 feet from the marks and at a sharp angle therefrom. The two automobiles were considerably apart. There were glass and debris in the road near the center line, but mostly on Nearing's side. The Cadillac automobile weighed 4,640 pounds while the Corvair weighed 2,350 pounds. The left and center front of the Cadillac and the extreme left front and side of the Corvair were damaged.

There were other factors: the curve itself, the degree thereof, the centrifugal forces and its effect on each operator in maneuvering his automobile, the ascent of the Corvair, the descent by the Cadillac, the headlights of the automobiles. These also in some manner contributed to the happening of the accident.

As to the testimony of the occupants of the automobiles (including the drivers), all may have thought their views, their observations and their conclusions were in all respects accurate and correct while in reality some, if not all, had to be in many respects wrong. It is in circumstances such as here that other evidence, such as physical markings, become of utmost importance and of great consequence in deciding the issues as to the rights of the respective litigants. The appellant Gersch makes a strong argument based on these physical facts, but the jury did not accept that theory and its verdicts are not against the weight of the credible evidence. There was no testimony as to what the automobiles did following the collision. They may have spun around in whole or in part; they may have rebounded after the initial impact or done many other unusual things, but there is no dispute as to where each automobile finally came to rest. In fact, there is testimony that the Nearing vehicle was facing in a direction opposite its direction of travel prior to impact.

From the record the jury might have found in favor of Gersch; it might have found both operators negligent, but it did not. The fact that it found in favor of Nearing and his passenger Peters does not make its verdicts wrong. There were other factors such as the jury's observation of the witnesses, its examination of the photographs, its deductions and conclusions, the credibility of the parties and the witnesses. All of these factors weigh upon the court's right to interfere with a jury verdict once rendered. As stated in Rapant v. Ogsbury (279 App. Div. 298, 299): "The point of interference is where the judge thinks the jury has gone much too far afield from the course the judge regards as proper, in the sense of his professional way of looking at facts."

This three-week trial was very well conducted with all of the litigants represented by experienced and capable counsel. The witnesses produced by the parties were subject to direct and cross-examination by the various attorneys and in many instances subject to redirect and recross-examination. The many exhibits in evidence were marked by witnesses and such markings reaffirmed by additional witnesses. There can be no question that the jury knew and understood the theory and contentions of each party. Its unanimous verdicts reflect such knowledge. At the close of the evidence each counsel made a summation to the jury (which is in the record) reiterating their arguments. Thereafter the court clearly outlined the rights of each litigant and properly instructed the jury as to the law, and as a result the jury returned only once for further instructions; exceptions and requests to charge were few and in most instances granted. In other words, there was no beclouding the issues and there is not any ground for a claim of prejudice, bias or sympathy.

The many cases cited by appellants in their briefs, while emphasizing the general rule as to physical evidence, are not of themselves controlling. It is axiomatic, particularly in automobile accident litigation, ...


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