
    Evelyn Pfaffenbach, Appellant, v. White Plains Express Corp., Respondent, et al., Defendants.
    Argued January 17, 1966;
    decided March 24, 1966.
    
      
      William J. Collier, Jr., for appellant.
    I. The admission of fault by the operator of respondent’s truck is evidence of negligence against respondent and is sufficient, without further evidence, to establish a cause of action on behalf of plaintiff against respondent. (Evans v. Groves & Sons Co., 315 F. 2d 335; Hemingway Bros. Trucking v. McLeod, 22 A D 2d 299; Koester v. Rochester Candy Works, 194 N. Y. 92; Cook v. Barr, 44 N. Y. 156; Reed v. McCord, 160 N. Y. 330; Cox v. State of New York, 3 N Y 2d 693; People v. Lane, 10 N Y 2d 347; Epstein v. Cohen, 288 N. Y. 307; Gangi v. Fradus, 227 N. Y. 452.) II. On the basis of the proof submitted mid the circumstances surrounding the accident, the jury was warranted in drawing an inference of negligence against respondent. (Gooch v. Shapiro, 7 AD 2d 307, 8 NY 2d 1088; Piccolo v. Knight of Rest Prods. Corp., 7 A D 2d 369, 9 N Y 2d 662; DiSalvo v. City of New York, 254 App. Div. 886; Cutler v. Brockington, 10 A D 2d 712, 8 N Y 2d 707; Counter v. New York Tel. Co., 259 N. Y. 554; Burlingame Motors Corp. v. Thurber, 263 App. Div. 781, 287 N. Y. 851; Galbraith v. Busch, 267 N. Y. 230; Burton v. American Bridge Co., 297 N. Y. 993; Bennett v. New York & Queens Elec. Light & Power Co., 294 N. Y. 334.) III. The Appellate Division was without power to dismiss the complaint where respondent failed to register an objection to the denial of its motion for nonsuit by the trial court. (Gelardin v. Flomarcy Co., 293 N. Y. 217; Eno v. Klein, 236 N. Y. 543; Hecla Powder Co. v. Sigua Iron Co., 157 N. Y. 437; Bath Nat. Bank v. Sonnenstrahl, Inc., 249 N. Y. 391; People v. Davis, 231 N. Y. 60.)
    
      Michael A. Hayes, Jr., for respondent.
    I. Proof of negligence was insufficient to make out a jury question. (Lo Piccolo v. Knight of Rest Prods. Corp., 7 A D 2d 369, 9 N Y 2d 662; Galbraith v. Busch, 267 N. Y. 230; Lahr v. Tirrill, 274 N. Y. 112; Gooch v. Shapiro, 7 A D 2d 307, 8 N Y 2d 1088.) II. The admission of supposed fault by the operator of respondent’s truck was no evidence of negligence against respondent and it does not establish a cause of action on behalf of plaintiff. (Epstein v. Cohen, 288 N. Y. 307.) III. The Appellate Division was within its power in dismissing the complaint since respondent properly by motion complied with the trial technicalities prior to submission of the case to the jury.
   Bekgan, J.

Plaintiff was riding as a passenger in an automobile proceeding northerly on Route 117 near Mount Kisco. It was raining or snowing; there was slush on the road surface and it was slippery. A truck of defendant White Plains Express Corp., moving southerly on the road, came over into the northbound lane and struck the car in which plaintiff was riding. Plaintiff was injured.

Defendant at the trial gave no explanation for the accident, offered no proof on the issue of negligence, and the jury found a verdict for plaintiff. The Appellate Division by a divided court reversed the judgment on the law and dismissed the complaint.

The dismissal was for failure to make out a cause of action prima facie and was explicitly placed on the authority of two decisions, Lo Piccolo v. Knight of Rest Prods. Corp. (7 A D 2d 369, affd. 9 N Y 2d 662) and Gooch v. Shapiro (7 A D 2d 307, affd. 8 N Y 2d 1088), These authorities in the main stem back to Galbraith v. Busch (267 N. Y. 230) and Lahr v. Tirrill (274 N. Y. 112).

On close analysis, the cited decisions are distinguishable from the case in hand. Although the basic concept of negligence was debated in the opinions at the Appellate Division in Lo Piccolo (7 A D 2d 369) the actual holding there was to affirm on the facts a defendant’s jury verdict and thus the legal problem was not deemed open in this court (9 N Y 2d 662).

As far as Gooch has relevance, and it also involved other questions, it could have turned on the sufficiency of the explanation given at the trial by the driver of the ear which went across the road (see 7 A D 2d, pp. 308, 309), an explanation not forthcoming in the present case. Both Galbraith and Lahr were passenger actions against their own drivers.

But differences of view within the Appellate Division, and its disagreement with the Trial Term on what is sufficient to show negligence prima facie, suggest the need for a restatement of the rule to be applied when a vehicle comes over onto the wrong side of the road and damage results.

In such a situation, showing this and nothing more, a case of negligence is made out prima facie sufficient to go to the jury to determine liability. The explanation of the defendant, if he gives one, will also usually be for the jury. The same rule, open to additional factual evaluation of his own responsibility for events, would apply to the passenger in a car which goes out of control.

The nice balance of knowledge and responsibility for some unknown “ defect in the automobile ” as a possible cause of an unexplained accident which the passenger guest, when he got in the car, was deemed to share equally with the owner and driver, and which it was held to be his burden to eliminate as part of his affirmative case has, in the 30 years since Galbraith v. Busch was handed down, been sapped of all practical application to the real world of motor vehicle operation (see 267 N. Y., p. 235).

Rigidity of legal rules which piece together conduct in the management and control of a moving vehicle in separate compartments under ‘ ‘ negligent ’ ’ and " non-negligent ’ ’ labels has not only failed to succeed as an instrument of adjudication; it has succeeded in confusing the business of deciding motor vehicle accident cases consistently. Modern experience suggests we can be less certain of the precision of our categories in this field of adjudication than we had confidently assumed a generation or so ago.

Thus there should be more legal flexibility on what is negligence as applied to the control of moving vehicles and the question left open to factual judgments of the jury where the record shows a skid, or the explanation for a skid, or a car on the wrong side of the road, or the explanation of why it is there, or the need for the passenger in a car to act in relation to its operation.

It may, for one example, be quite as dangerous for a passenger to give unsolicited advice to the driver as to remain quiet. Either way the question is one of fact on the general obligation of the plaintiff to show himself free from negligence.

The order should be reversed, with costs, and, in view of the affirmance by the Appellate Division of the facts implicit in the verdict, the judgment for plaintiff reinstated.

Burke, J. (concurring).

I would reverse solely on the ground that proof of “mere skidding” is prima facie evidence of negligence in this case where the plaintiff was not a passenger in defendant-respondent’s car. There are obvious distinctions between a plaintiff who is a guest-passenger and one who is a stranger. The former not only assumes some risk in accepting the gratuitous transportation but also is in the advantageous position of having the opportunity to observe whether the defendant exercised reasonable care in the operation of the vehicle. (Galbraith v. Busch, 267 N. Y. 230; Lahr v. Tirrill, 274 N. Y. 112; Gooch v. Shapiro, 7 A D 2d 307, affd. 8 N Y 2d 1088.) On the other hand, the stranger who is injured by defendant’s vehicle’s skidding into the opposite flowing lane of traffic or up onto a sidewalk, under conditions known to the defendant alone, is at a singular disadvantage. Therefore, the quantum of proof required to make a case in each situation ought to be measured according to the relationship of the parties. It is understandable why when a guest-passenger sues there ought to be additional proof to show that the defendant’s negligent driving caused the skid and the consequent accident. The rule that a case is not made out without the additional evidence is reasonable because the accident may have occurred either through a defect in the car not known to the owner, the risk of which the passenger-guest assumes, or through the driver’s negligent operation of the vehicle. There the equal probability that the accident was caused by a defect in the car must be eliminated by other proof of negligence adduced by the plaintiff. However, in a suit by a person who is a stranger to the defendant and his vehicle, once the plaintiff adduced such evidence as is reasonably available to him (and it may be proof of defendant’s skidding and nothing more), the burden of going forward with the proof ought to shift to the defendant. The defendant may then show that it was truly an unavoidable accident or elect to let the case go to the jury on the plaintiff’s evidence. In such a case the plaintiff does not assume the same risk of unknown defects as would the owner of the vehicle or his guests. Such a rule is impartial. At all events, if the defendant refrains from giving any explanation, the plaintiff’s evidence of the facts and circumstances leading up to the skid ought to be submitted to the jury to determine whether or not any inference of negligence may be drawn. This view does not cast as difficult a responsibility on the defendant as the ruling in the court below has imposed upon the plaintiff. On this theory, which I think is equitable, a nonsuit is here unjustifiable.

For these same reasons I believe that in the “skidding” cases we ought to draw a line between parties in disparate situations. The Galbraith, Lahr, Gooch rule that the assumption of risk by a passenger-guest for all defects in a car not known to the owner imposes on that plaintiff the obligation of introducing other evidence of the defendant’s lack of due care in order to eliminate the inference of a defect in the car ought to be retained. If it is overruled the defendant owner will be unfairly penalized with a resulting unjustified windfall to the guest-passenger. But a limitation on that standard is justified in the situation of a stranger plaintiff in order to hold the scales even, and not place an undue burden on a party not in a position to know whether or not the defendant has acted in a negligent manner.

Chief Judge Desmond and Judges Fuld, Van Voorhis, Scileppi and Keating concur with Judge Bergan; Judge Burke concurs in a separate opinion.

Order of Appellate Division reversed and judgment of Trial Term reinstated, with costs.  