
    Margaret Andersen, as Administratrix of the Estate of Alfred Andersen, Deceased, Appellant, v. Bee Line, Inc., et al., Respondents.
    Argued January 10, 1956;
    decided April 27, 1956.
    
      
      John F. X. Finn, R. Mel Kavakos, Henry J. O'Hagan and Norman C. Mendes for appellant.
    I. In a death action plaintiff established a prima facie case of negligence proximately causing death. (Noseworthy v. City of New York, 298 N. Y. 76; Herbert v. Smith Paper Corp., 243 App. Div. 260; Lee v. City Brewing Corp., 279 N. Y. 380; Trimble v. City of New York, 275 App. Div. 169; Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1; Trump v. Associated Transport, 275 App. Div. 982; Nuss v. State of New York, 195 Misc. 38, 276 App. Div. 300, 301 N. Y. 768; Klein v. Long Is. R. R. Co., 199 Misc. 532, 278 App. Div. 980, 303 N. Y. 807; Keenan v. Sheehan, 205 Misc. 183, 284 App. Div. 895.) II. The finding of negligence on the part of defendant was implicit in the verdict and there was ample evidence to sustain such finding. (Hartstein v. United States Trucking Corp., 260 App. Div. 643.) III. In a death action, burden of proving contributory negligence is on defendant. (Flynn v. Long Is. R. R. Co., 289 N. Y. 283; Andross v. Trustees of Columbia Univ., 287 N. Y. 160; Schrader v. New York, C. & St. L. R. R. Co., 254 N. Y. 148.) IV. The jury could have rejected defendant’s claim that decedent’s car was on the wrong side of the road. Defendant admittedly never swerved to the right. V. Even if the collision took place on the south side of Merrick Road, the sudden swerving of decedent’s car into the wrong lane for no conceivable purpose, as described by defendant, would not be proof, as a matter of law, of contributory negligence. (Cole v. Swagler, 308 N. Y. 325; Tortora v. State of New York, 269 N. Y. 167; Galbraith v. Busch, 267 N. Y. 230; Salomone v. Yellow Taxi Corp., 242 N. Y. 251; Montgomery v. Humphrey, 284 App. Div. 365; Kolanka v. Erie R. R. Co., 215 App. Div. 82; Wardrop v. Santi Moving & Express Co., 233 N. Y. 227; Coulter v. American Merchants’ Union Express Co., 56 N. Y. 585.) VI. The court below erred in reversing the judgment on the law and dismissing the complaint. (Betzag v. Gulf Oil Corp., 298 N. Y. 358; Hendrickson v. Hodkin, 276 N. Y. 252; Bernstein v. Greenfield, 281 N. Y. 77; Cornbrooks v. Terminal Barber Shops, 282 N. Y. 217; De Wald v. Seidenberg, 297 N. Y. 335; Budrow v. Grand Union Co., 302 N. Y. 804; Owen v. Rochester-Penfield Bus Co., 304 N. Y. 457; Jones v. Liberty Fast Freight Co., 280 App. Div. 935.)
    
      
      William L. Shumate and Thomas C. Cusack for respondents.
    The proof in this record is insufficient to make out a prima facie case of negligence in the operation of the bus. (Wank v. Ambrosino, 307 N. Y. 321; Carlson v. City of New York, 150 App. Div. 264.)
   Conway, Ch. J.

On Friday, December 8, 1950, at about 6:40 p.m., a bus of the corporate defendant, Bee Line, Inc., driven by the individual defendant, Matzen, collided with the sedan of Alfred Andersen on Merrick Road between Brookside and Juanita Avenues in Freeport, Long Island. Andersen died in the hospital 10 days later, without ever regaining consciousness.

Thereafter this action was brought by plaintiff, as administratrix of Andersen’s estate, to recover for the alleged wrongful death and conscious pain and suffering of the decedent, caused by the alleged negligence of Matzen in the operation of the bus. At the close of all the evidence the Trial Judge dismissed plaintiff’s cause of action for conscious pain and suffering on the ground that decedent never regained consciousness. Plaintiff does not contest that ruling. The jury returned a verdict in favor of plaintiff on the cause of action for wrongful death. The Appellate Division has reversed, upon the law alone, holding that no view of the evidence establishes a prima facie case of negligence by defendants causally connected with the collision. The sole issue in the case, therefore, is whether plaintiff made out a prima facie case in the wrongful death suit. In determining that question in favor of plaintiff we have been guided by the principles (1) that in a death case a plaintiff is not held to as high a degree of proof of the cause of action as where an injured plaintiff can himself describe the occurrence (Noseworthy v. City of New York, 298 N. Y. 76, 80; Cole v. Swagler, 308 N. Y. 325), and (2) that where the complaint has been dismissed, the evidence adduced at the trial is to be considered in the aspect most favorable to plaintiff and plaintiff is entitled to the benefit of every favorable inference which can reasonably be drawn from the evidence (Sagorsky v. Malyon, 307 N. Y. 584, 586; De Wald v. Seidenberg, 297 N. Y. 335, 336-337).

Merrick Road is a macadam road about 30 feet wide, divided in the center by a white line. It runs generally east and west, but just before it reaches Juanita Avenue, the scene of the accident, it curves sharply to the right for eastbound traffic. The bus was traveling in an easterly direction, had passed Brookside Avenue and was approaching Juanita Avenue on the curve to the right when the accident occurred. The decedent was operating his car, an old model Dodge, in a westerly direction. At the time of the collision it was dark and the street lights were lighted. The night was clear and the pavement dry.

The individual defendant testified that he operated the bus around the curve in question at approximately 20 to 25 miles per hour with all the lights lighted. He had driven 25 feet past Brook-side Avenue, which intersects Merrick Road on the north at the sharp curve, when he saw the headlights of Andersen’s approaching car, which at that moment was in its proper lane. Matzen had driven another 25 feet when Andersen’s car suddenly swung over onto the eastbound lane and headed directly for defendant’s oncoming bus. Matzen estimated Andersen’s speed to be “ fifty or better ”. Matzen stated that he immediately applied his brakes and that at the point of collision he had reduced the speed of his bus to about 8 to 10 miles per hour, while Andersen had not slowed his car at all. Matzen testified that his bus didn’t change direction at all ’ ’ after the accident and that he had never straddled the white line on Merrick Road in all the years he had been driving. The front part of the Dodge, except the right fender, was struck by the bus on the left portion of the front of the bus. Under the impact the Dodge turned in a northwesterly direction. After the impact, the bus continued forward with its brakes on, according to Matzen, for a distance of about 10 feet. On cross-examination Matzen admitted that one of the photographic exhibits indicated that the Dodge had been pushed back about 29 feet after the impact.

Police Officer Pavlicin testified that the distance from the rear of the bus, after the accident, to Brookside Avenue, was 96 feet, 4 inches.

Manifestly, if that was all the evidence in the ease, we would be compelled to affirm the dismissal of the complaint for failure to prove negligence on the part of defendants. However, such is not the fact.

Gilbert R. Guesno testified that his house was located south of Merrick Road on the east side of Brookside Avenue and was about 280 feet from the southeast corner of Merrick Road and Brookside Avenue. Just before the accident he was on his way to a gas station located on the south side of Merrick Road to buy a package of cigarettes. He was walking along a path on the west side of Brookside Avenue and when he was about 20 feet from Merrick Road he saw. the defendant’s bus coming around the curve headed east. He estimated that the bus was traveling at a speed of between 40 and 45 miles an hour and said that the bus was straddling the white center line by about a foot. At that time the bus was about 150 feet west of where he was standing and about 300 feet from the point of collision. He was then at a point about 10 feet from Brookside Avenue. After the bus passed him he heard a loud crash and saw that the bus had stopped beyond the bus stop but he did not see any other car at that time. He went over to where the bus had stopped and then saw the other car. He did not see the actual collision.

It cannot be disputed that the jurymen — the sole judges of credibility — were free to reject all or part of the testimony of Matzen, an interested witness, and to accept that of Guesno, a disinterested witness.

Guesno testified that just before the collision he saw the bus approaching Brookside Avenue about 150 feet west thereof, straddling the white center line, traveling at 40 or 45 miles an hour and that it was traveling at that same speed when it passed Brookside Avenue. The speed limit in Freeport is 30 miles an hour. Accepting as true Guesno’s testimony and accepting as true the testimony of Officer Pavlicin that the distance from Brookside Avenue to the point of collision was about 96 feet, the collision must have occurred less than 2 seconds after the bus passed Brookside Avenue or about 4 seconds after Guesno observed it straddling the white line. It seems to us that, in view of the short period of time elapsing between the time the bus was observed traveling at a rate in excess of the lawful speed limit and partially on the wrong side of the white center fine, a jury could reasonably draw the inference that the bus continued in its unlawful course and struck the decedent’s car while the bus was on the wrong side of the road or, by being on the wrong side of the road just before the impact, defendant Matzen created such an emergency situation that Matzen was responsible for the decedent’s swerving onto the wrong side of the road in an effort to extricate himself from the situation. One traveling to the left of the center of the road in the direction in which he is traveling at an excessive rate of speed, who has a collision with a car approaching from the opposite direction which is on the side of the road where it has a right to travel, may properly be held guilty of negligence proximately causing the collision. The same is true, of course, where one creates an emergency situation.

The photographs taken after the accident which show the bus to be in its own lane do not establish, as a m,atter of law, that the bus was in its own lane at the moment of collision. The jury had before it Matzen’s testimony indicating that after impact the bus pushed the car back about 29 feet. If the jury determined that the bus was moving at a rate of from 40 to 45 miles per hour at the time of collision, it seems to us it could have properly concluded that the car was pushed a greater distance and that the bus driver, while bringing his bus to a stop, turned back into his own lane. There were no skidmarks from the bus.

Since the opinion of the Appellate Division is referred to in its order and it declares that ‘ ‘ A new trial would not be granted on the facts * * * ”, we conclude that the facts were affirmed by the Appellate Division and that the reversal was upon the law alone (Civ. Prac. Act, §§ 602, 607). Under such circumstances there is no purpose to be served by remitting the matter to the Appellate Division and we are obligated to render a final determination in favor of the plaintiff.

The judgment appealed from should be reversed, with costs in this court and in the Appellate Division, and the judgment of the Trial Term reinstated.

Burke, J.

(dissenting). The only question raised on this appeal is whether plaintiff made out a prima facie case.

The individual defendant Matzen testified that while engaged in driving a bus traveling in an easterly direction within the confines of the eastbound lane of Merrick Road, the decedent drove his car at an excessive rate of speed over into the eastbound lane and directly toward the oncoming bus, causing the defendant to apply the brakes of the bus.

An examination of the vehicles show that the left front and left side of the plaintiff’s car met with the left front part of the bus. The photographs taken just after the accident, concededly accurate, indicate that the decedent’s car had been pushed back from the eastbound lane until it straddled the white center line while the bus was well over in the eastbound lane with its right wheels close to the curb and its left wheels 3 to 4 feet inside of the center white line. Finally, the gash in the roadbed pavement demonstrated that the car of the decedent was over the white line in the wrong lane at the point of impact.

The witness for the plaintiff testified that he was walking on the west side of an intersecting street, Brookside Avenue, in a northerly direction, when he saw the corporate defendant’s bus traveling eastward on Merrick Road about a foot over the white line, at an estimated speed of between 40 and 45 miles an hour. He estimated that the bus was about 150 feet west of where he was standing and about 300 feet from the point of collision. After the bus passed him, he stated he heard a loud crash but he did not see the collision.

Notwithstanding the rules that in death cases the plaintiff is not held to as high a degree of proof of the cause of action as where an injured plaintiff can himself describe the occurrence (Noseworthy v. City of New York, 298 N. Y. 76, 80) and that reasonable inferences may be drawn from the evidence to make out a prima facie case (Wank v. Ambrosino, 307 N. Y. 321, 323-324), nevertheless, the inferences must be drawn from facts necessary to establish the cause of action — i.e., negligence and proximate cause. (Cole v. Swagler, 308 N. Y. 325, 329; Boyce Motor Lines v. State of New York, 306 N. Y. 801.)

Accepting the testimony of the plaintiff’s witness at its face value, any inferences drawn from it, such as: continuance in an unlawful course; excess speed as inferred from estimated elapsed time or creation of an emergency situation, constitute at best unproved assumptions, which in the absence of other evidence might be sufficient to warrant submitting the case to the jury. But there was no plaintiff’s evidence to explain how the decedent driving the westbound car moved over to the wrong side of the road. The presence of a car on the wrong side of a road cannot be anticipated without prior warning. (Meyer v. Whisnant, 282 App. Div. 930, affd. 307 N. Y. 396.) Such inferences as may be drawn from the testimony of the plaintiff’s witness, fail to establish logically that the proximate cause of the accident was due to the negligence of the individual defendant.

Moreover, verdicts contrary to the actual physical facts as disclosed by properly authenticated and unimpeachable photographs have been set aside. (Busch, Photographic Evidence, 4 De Paul L. Rev. 195, 200, citing Hartley v. Rodd Lbr. Co., 282 Mich. 652; Mobile & O. R. Co. v. Bryant, 159 Miss. 528; Lessig v. Reading Tr. & Light Co., 270 Pa. 299.) Such evidence has its own independent probative value. (Gardner, The Camera Goes to Court, 24 N. Car. L. Rev. 233; 3 Wigmore on Evidence, § 792a, 1955 Pocket Supp., p. 54; Boyarsky v. Zimmerman Corp., 240 App. Div. 361.) The photographic exhibits in this case absolately rebut the unproved assumptions made by the plaintiff. The exhibits confirm in every respect the testimony of Matzen, the eyewitness to the collision. Faced with such factual evidence as opposed to the unproved assumptions, we cannot as a matter of law find that the plaintiff made out a prima facie case.

In Betzag v. Gulf Oil Corp. (298 N. Y. 358, 364), we said: ‘ ‘ where, as in this case, the complaint has been dismissed on the law, we are required to give the plaintiff the benefit of every favorable inference which can reasonably be drawn ’ from facts proven The evidence here contains facts from which no clear reasonable inference can show (as the Appellate Division said) 1 ‘ negligence by defendants causally connected with the collision ”. The verdict could only be reached by a series of suppositions or the piling of inference upon inference successively, adding up only to a conclusion founded on pure conjecture — a conclusion contradicted by the photographs, “the perfect witness — an eye-witness who cannot forget and whose memory cannot be distorted (24 N. Car. L. Rev. 235.) The substitution of speculation in place of, and in disregard of, proof is not in law sufficient to support a finding that the plaintiff had made out a prima facie case.

The judgment appealed from should be affirmed.

Desmond, Dye and Froessel, JJ., concur with Conway, Ch. J.; Burke, J., dissents in an opinion in which Fuld and Van Voorhis, JJ., concur.

Judgment of Appellate Division reversed and that of the Trial Term reinstated, with costs in this court and in the Appellate Division.  