# Jarrett v. Madifari > Appellate Division of the Supreme Court of the State of New York · April 19, 1979 · 67 A.D.2d 396 URL: https://www.frixlaw.com/law-library/cases/5831701 ## Case - **Full name:** Richard Jarrett v. Vincent Madifari - **Court:** Appellate Division of the Supreme Court of the State of New York - **Decided:** April 19, 1979 - **Citations:** 67 A.D.2d 396; 415 N.Y.S.2d 644; 1979 N.Y. App. Div. LEXIS 10123 - **Precedential status:** Published - **Opinion:** Dissent by Lynch - **Judges:** Lupiano, Lynch - **Cited by:** 24 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5831701 ## How later opinions describe it (automated extraction) - stating that plaintiff "must establish the propositions essential to his cause by a preponderance of the evidence” and explaining that "plaintiff is required to show with reasonable certainty that the injury resulted from the act of the defendant” (emphasis added) ## Opinion text Lynch, J. (dissenting). Despite his claim of amnesia, the plaintiff at the trial was able to summon up one recollection *410 directly involved with the happening of this accident. He remembered that just before starting across the highway he looked and saw two cars coming from 500 yards away. * This fortuitous recollection has now become crucial because the majority has held that by recalling this the plaintiff has met his burden of proving his freedom from contributory negligence. We respectfully disagree. A plaintiff traversing a highway at a place where there is no assigned crossing is not by that fact precluded from recovery (Uralsky v Gribbon, 242 App Div 533 ) but may be charged with added vigilance (Baker v Close, 204 NY 92, 95 ). By statute, one crossing a highway other than at a regular crossing must “yield the right of way to all vehicles upon the roadway” (Vehicle and Traffic Law, § 1152, subd [a]). To sustain his burden of proof this plaintiff had to persuade the trier of the facts that there was no necessity to yield way to any vehicles, that a reasonably prudent pedestrian under the same conditions would have been able to have crossed this highway free of danger from vehicular traffic. This would necessitate the trier of the facts weighing not just a single recollection of the plaintiff but all of the circumstances disclosed by the proof: the position of the parties, the course and distance each would have to travel, the speeds of travel, the visibility for each. All of this would go into a determination whether, if each party persisted in his course, the plaintiff would be in danger in crossing the highway or free of danger (Shuman v Hall, 246 NY 51 ; Chandler v Keene, 5 AD2d 42 ; 4A NY Jur, Automobiles and Other Vehicles, § 784). More is required for exculpation from contributory negligence than a recitation by a plaintiff that he looked and it appeared to be safe (see, e.g., O’Reilly v Davis, 136 App Div 386 ). There is little dispute about the factual circumstances of this accident. The plaintiff left a position of safety at the edge of the Thruway to return to a disabled car across three southbound lanes of traffic. He was carrying the base of an automobile jack in his right hand and its long handle over his left shoulder. He said that when he started across he looked to his left and saw two cars approaching from 500 yards away. *411 Inescapably, there were at least three cars, there was at least one in each traffic lane and the cars in first and second lane must have been almost on top of the plaintiff because it is undisputed that they were only 50 to 60 feet away from the disabled car when they began decelerating. As the defendant, in the third lane, approached the scene he was farther north than the car in the second lane. When the car in the second lane slowed down, the defendant overtook it and, at the same time in recognition of the disabled car parked immediately ahead of him on his left, he moved his car slightly to his right. A metallic object (the jack handle?) hit his windshield on the right side. He stopped his car within 100 feet. The plaintiff’s body was lying in the second lane almost at the line separating it from the third lane. To us these facts bespeak the plaintiff’s contributory negligence. They are not significantly different from those of Casey v Ross ( 10 NY2d 834 ). There the car in the first driving lane was parked and the plaintiff walked in front of it. A car in the second driving lane stopped suddenly and its driver motioned the plaintiff across in front of him. She went across and was hit by a passing car in the third driving lane. The Court of Appeals held her contributorily negligent as a matter of law. The facts here justify the trial court’s holding that the plaintiff had failed to establish his freedom from contributory negligence. The majority would hold the defendant liable, despite the plaintiff’s negligence, through the last clear chance doctrine using a very shaky hypothesis: "The evidence adduced at the trial herein highlighted by the inconsistency in defendant’s versions of the incident set forth circumstances which might demonstrate that defendant in fact had knowledge of the plaintiff’s peril.” To find the inconsistency the majority has strained at a gnat. It has gone to the defendant’s MV-104 and its usual question asking for the description of the accident and its apparent causes and interpreted this as though it asked for the defendant’s vision of the accident and not his version of it. We find no inconsistency. We find no evidence that would indicate that the defendant knew of the presence of the plaintiff and we find the reason in the record why he should not have known. The defendant’s view of the plaintiff would have been blocked by the car ahead in the second lane and on overtaking that car his attention was momentarily diverted by *412 the parked car immediately ahead to his left. Furthermore it is basic to the last clear chance doctrine that the defendant not only have knowledge of the plaintiffs peril but also have an opportunity to do something about it. It is not shown to our satisfaction that, had the defendant known of the plaintiffs presence, he could have taken any helpful action in the split seconds involved. We would affirm. Birns, J. P., and Fein, J., concur with Lupiano, J.; Sullivan and Lynch, JJ., dissent in an opinion by Lynch, J. Judgment, Supreme Court, Bronx County, entered on September 20, 1977, reversed, on the law and the facts, and vacated, judgment granted plaintiffs on the issue of liability, and the matter remanded for an assessment. Appellants shall recover of respondent $75 costs and disbursements of this appeal. A statement in the majority opinion that the plaintiff looked a second time refers to his saying that he looked again just prior to the impact. But this was not testimony at the trial. It was at the examination before trial when the plaintiff could remember looking again but could not remember seeing anything. At the trial he could not remember either these questions or answers. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5831701. Public record. Not legal advice.