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In March of 1974, the Supreme Court Appellate Division, First Department heard an appeal in reference to a commercial truck accident


In March of 1974, the Supreme Court Appellate Division, First Department heard an appeal in reference to a commercial truck accident. The commercial truck was accused of being illegally double parked on the side of a one way street in New York City. An eight year old girl was playing on the sidewalk and darted out into the roadway. She was struck by a passenger car that was driving down the roadway. She stated that she had not been able to see the car coming because her line of vision was blocked by the commercial oil tanker truck. Her account of the incident was corroborated by seven witnesses and her brother in law. The witnesses were playmates and neighbors. The oil tanker company stated that they did not have a truck there at that time on that date. The driver for the oil tanker company who normally works that area stated that he was not on that street on that date.

The Queens police officer who was first on the scene, pulled up behind the passenger car that hit the child, and blocked the roadway. The detective that responded to the scene took copious measurements and drew a detailed crime scene sketch which was later copied onto a more formal diagram. Even though he did not copy all of the measurements that he originally made onto the final formal diagram, those that were on the diagram were exactly the same as the ones that he had on his informal sketch. The measurements that the officer took show that the collision occurred within 15 feet of the sidewalk. A normal lane of traffic is 12 feet. The information on the measurements with the vehicle in place and the skid marks on the roadway, clearly show that there was no room for a commercial vehicle to be double parked on the roadway. If a vehicle of any size had been located where the witnesses claimed the vehicle was located, it would have been struck by the passenger car as it swerved to the left in an attempt to avoid the child. However, even if the truck had been there, it would have had no bearing on the accident itself.

The Staten Island child darted out in to traffic in the middle of the block. The child was not in a crosswalk and had no legal reason to be in the roadway at that particular spot. The question of liability in this case which was brought up in court was misleading at best. In the original trial, there was a tremendous amount of time and testimony given to the issue of the commercial oil tanker truck. So much testimony was given to the issue of the commercial vehicle, that negligence of the passenger car driver who struck the child took second place. In fact, the Supreme Court stated that the issue became so blurred as it concerned the commercial vehicle, that it was impossible to determine if the driver who struck the child was guilty of any negligence at all. The Supreme Court decided that the only issue that should have been dealt with in the first trial should have been the negligence or lack thereof in the case of the passenger car driver who actually struck the child. The Supreme Court further stated that it did not matter if the truck was there or not since the child was not in a crosswalk, the responsibility to cross the road safely fell entirely to her. The Court felt that even at eight years of age, she had the responsibility to look both ways and to ensure that she was able to cross the road in safety. Further, since the girl came off the curb and out into the roadway from between two parked vehicles, the court feels that it is possible that there was no fault at all on the part of the passenger car driver that hit her. A person darting out into traffic is not given the right of way in the roadway. In this case, the passenger car had the right of way when she entered the roadway. Only by showing some form of negligence on the part of the driver of the passenger car, can the child or the child’s parents as the case may be put liability on someone else. In other words, the driver of the car that hit the child would have to have been speeding, making an illegal lane change, losing control of his vehicle, or going the wrong way on the one way street in order for the accident to have been his fault. Since none of the above situations were shown, then it is doubtful that the driver of the passenger car is at fault in this accident.

In spite of all of this, the court is concerned that the question of negligence on the part of the driver of the passenger car did not get the attention that it deserved in the first trial of this case. There was overwhelming physical evidence on the scene and presented in court that the commercial oil tanker truck was not there. The transcript of the appeal states that, “Respecting the time-honored axiom that a jury’s judgment as to the facts is all but sacrosanct, the evidence of plaintiff and the non-blotter witnesses is more than countervailed by the physical principle that two bodies cannot occupy the same space simultaneously.”

The Supreme Court further stated that as to the driver of the passenger car, the only evidence of failure to control his vehicle is that he did hit the child with it. The Court states that this might have been enough of a foundation for the jury to find him liable if not for the clouding of the issue by the topic of the commercial oil truck.

Because of this, the court ruled to overturn the original verdict in this case and to order a new trial on the clear issue of negligence, uncomplicated by the issue of if a commercial truck was there or not.

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