(DOWNLOAD) "Ludwig Rohrmayr v. City New York" by Supreme Court of New York # eBook PDF Kindle ePub Free
eBook details
- Title: Ludwig Rohrmayr v. City New York
- Author : Supreme Court of New York
- Release Date : January 19, 1970
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 62 KB
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[33 A.D.2d 920 Page 921] Plaintiff's intestate was a pedestrian crossing the "T" intersection of Remsen and Clarkson Avenues in Kings County when
she was struck by an automobile operated by defendant Joseph Annungiata; she was going from west to east on Remsen Avenue.
There was proof offered to show that at the time of the accident the traffic lights in question were not operating properly
in that they were in a "steady" condition, i.e., steady green for Remsen Avenue traffic and steady red for Clarkson Avenue
traffic. However, there was also testimony by a police officer that he saw the light green in favor of Remsen Avenue traffic
on his way to the accident, but red 10 minutes later. The state of this evidence is such that the question of whether the
alleged defective condition of the lights was the proximate cause of the accident should be left to the jury on the new trial,
as well as all other questions relating to the liability of the several defendants. A new trial on the issues of liability
is required, except as between plaintiff and defendant Welsbach Corp. There was proof at the trial that defendant Joseph Annungiata
was driving his automobile on Remsen Avenue at a reasonable rate of speed with the light in his favor and that he had no opportunity
to avoid the deceased who darted across the street against the light. This proof could have been confirmed by a nonresident
eye witness who testified to that effect at a vehicular homicide hearing conducted prior to the trial. However, this witness
was not available at the trial and the trial court properly refused to permit any delay (two weeks) to enable this witness
to attend. Further, the court properly excluded from evidence the testimony of this witness which had been given at the prior
homicide hearing (Fleury v. Edwards, 14 N.Y.2d 334). Ordinarily, a legal error or tactical miscalculation by trial counsel,
standing alone, will not justify a new trial. However, under all the circumstances of this case, we think the jury's verdict
is against the weight of the credible evidence and a new trial on the issues of liability, except as between plaintiff and
defendant Welsbach Corp., will best serve the interests of justice. The state of the evidence here supports the directive
for such new trial, at which defendants may be able to produce the important nonresident eye witness.