Opinion
December 28, 1970
In an action to recover damages for wrongful death, plaintiff appeals from a judgment of the Supreme Court, Queens County, entered October 1, 1969, in favor of defendant, upon the trial court's dismissal of the complaint at the close of plaintiff's case at a jury trial. Judgment affirmed, with costs. Plaintiff's intestate was killed when the automobile he was driving struck the concrete base of a light pole on the Grand Central Parkway. There were apparently no eyewitnesses to the accident. Plaintiff seeks to charge defendant with negligence in the design of the highway at the location of the accident. In spite of the fact that proof offered by plaintiff of several prior accidents should have been admitted upon a showing of substantial similarity of circumstances (see Hanselman v. Broad, 113 App. Div. 447, 449), we are nevertheless of the opinion that a prima facie case was not made out. We are further of the opinion that the trial court's rejection of plaintiff's offer of expert opinion testimony that the location was dangerous in various respects was proper ( Van Wycklen v. City of Brooklyn, 118 N.Y. 424, 429; Clark v. Iceland S.S. Co., 6 A.D.2d 544). Christ, P.J., Munder, Martuscello and Latham, JJ., concur; Benjamin, J., dissents and votes to reverse the judgment and grant a new trial, with the following memorandum: I agree with the majority's conclusion that the testimony as to prior similar accidents was improperly excluded. But I disagree with its conclusions (a) that the expert's opinion testimony as to the unsafe design and marking of the road was properly excluded and (b) that plaintiff would not have made out a prima facie case even if the proof of prior similar accidents had been admitted in evidence. In my opinion it was improper to exclude the expert's testimony that the design and marking of the road were unsafe and improper (see Lack v. Lawson Co., 16 N.Y.2d 942; Jenks v. Thompson, 179 N.Y. 20; Finn v. Cassidy, 165 N.Y. 584; Ward v. Kilpatrick, 85 N.Y. 413; Transportation Line v. Hope, 95 U.S. 297). If that proof were in the case, along with the improperly excluded proof of prior similar accidents at that place, there would unquestionably have been sufficient proof to make out a prima facie case in this death action, under the rule of Noseworthy v. City of New York ( 298 N.Y. 76). And in my opinion the Noseworthy standard of proof would have been met here even if the expert testimony were excluded and only the proof of prior similar accidents were admitted in evidence, as the majority says it should have been. I therefore vote to reverse the judgment and to grant a new trial.