Petition for a Writ of Certiorari — Dugan v. Dieber

Supreme Court brief1971

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Supreme Court, U.S.

FILED

ocT i 19m

= EReE Stee =". CLERK

In The

SUPREME COURT OF THE UNITED STATES

October Term, 197i

¥1-472

No.

ROBIN DUGAN, an infant, by DONALD DUGAN,

her Guardian ad Litem, and DONALD DUGAN,

individually,

Petitioners,

vs.

JACK DIEBER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE APPELLATE DIVISION, SECOND DEPART-

MENT, OF THE SUPREME COURT OF THE STATE

OF NEW YORK

Mollie Dugan

Counsel for Petitioners

c/o Eileen Evans Newmark

567 Larkfield Road

East Northport, N.Y. 11731

Tel: (516) 368-3400

.f Counsel

Morris D. Forkosch

Fabian G. Palomino

i a Be

. I SCENE PE Bg

TABLE OF CONTENTS

OPINION BELOW

JURISDICTION

QUESTIONS PRESENTED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT,

AND ARGUMENTS

CONCLUSIONS

APPENDIX:

A - Opinion of Appellate

Division Reversing

Judgment After First

Trial

B - Memorandum Decision

Denying Motion to

Set Verdict Aside

C - Order on Appeal from

Order and Judgment

D - Order on‘ Motion to

Reargue Appeal or to

Appeal to the Court

of Appeals ©

FE - Order Dismissing Appeal

F - Order Denying Leave

to Appeal

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Cases Cited

Bennetti v. N.Y.C. Transit

Authority, 22 N.Y.2d 742,

743, 239 N.E.2d 215 (1968)

Culley v. City of N.Y.,

25 A.D.2d 519, 520, 267

N.Y¥.S.2d 282 (1966)

Dugan v. Dieber, 32 A.D.2¢a

691, 302 N.Y.S.2d 423

Gasoline Products a 2

Champlin Refining Co.,

283 U.S. 494, 500 (1931)

Hunter v. New York, Ontario

& Western R.R. Co.,

116 N.Y. 615, 23 N.E. 9 (1889)

Johnson v. St.Paul Ry. Co..,

67 Minn. 260, 69 N.W. 900 (1897)

Koenig v. Patrick Const. Cor we

298 N.Y. 313, 317, 83 N.E.2a

133 (1948)

Lowe v. Board of Education,

--A.D.2d--, 321 N.Y.S.2d

508 (May 3, 1971)

McKay v. Syracuse Rapid Transit

885 [1913]

Norfolk S.R. Co. v. Ferebee,

238 U.S. 269, 273 (1915)

oon gt eee arene

a eT "

Cases Cited

Noseworthy v. City‘of New

York, 298 N.Y. 76, 80,

80 N.E.2d 744 (1948)

Swofford v. B & W, Inc.,

336 F.2d 406, 415

(Sth Cir. 1964), cert.

den. 379 U.S. 962 (1965)

Text Books

Vol. 15 Cornell L. Rev.

2B Federal Practice &

Procedure Section 943

(Barron & Holtzoff)

Handbook of the Law of Torts

(W. Prosser, 4th Ed.)

New York's Judicial Conference

Report 1969-70

Statutes

Pages

N.Y. Civil Practice Law S. Ve Dz

& Rules Section 603 28, 32, 33,

39, 45, 57

N.Y. Workmen's Compensation

Law Section 29(1) 31

5 U.S.C. Section 8101] 30

5 U.S.C. Section 8173 30

28 U.S.C. Section 1257(3) 3

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1971

No.

ROBIN DUGAN, an infant, by DONALD DUGAN,

ner Guardian ad Litem, and DONALD DUGAN,

individually,

Petitioners,

vs.

JACK DIEBER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE APPELLATE DIVISION, SECOND DEPART-

MENT OF THE SUPREME COURT OF THE STATE

OF NEW YORK

Robin Dugan, an infant, by Donald

Dugan, her Guardian ad Litem, and Donald

Dugan, petitioners respectfully pray

that a writ of certiorari issue to

review the order of the Appellate

Division, Second Departments of the

Supreme Court of the State of New York,

entered in this action on February 16,

1971.

Opinion Below

No opinion was rendered by the

Appellate Division in connection with

the order sought to be reviewed. No

Opinion has been rendered in this action

though it has been tried and appealed

twice, except an Opinion by the

Appellate Division on the reversal of

the judgment after the first trial,

which is reported as Dugan v. Dieber,

32 A.D.2d 691, 202 N.y.s. 24 423, and

@ memorandum decision rendered with an

order denying petitioners’ application

after the second trial for judgment

notwithstanding the verdict or to set

aside the verdict, which is not reported.

Jurisdiction

The order of the Appellate Division,

Second Department, of the oupeun Court

of the State of New York was entered on

February 16, 1971. A timely application

to that Appellate Division for permis-

sion to reargue the appeal or for leave

to appeal to the Court of Appeals of

the State of New York was denied by

order entered April 9, 1971. A timely

application to the said Court of Appeals

for permission to appeal to that Court,

based upon the said Appellate Division's

refusal, was denied on July 7, 1971, and

this petition for certiorari was filed

within ninety days of that date. This

Court's jurisdiction is invoked under

28 U.S.C. 61257 (3).

Questions Presented

1. Does the New York Civil

Practice Law & Rules $603, in empower-

ing that state's judiciary, “In further-

ance of convenience or to avoid pre-

judice. . .[to] order a separate trial

+ « « Of any separate issue. . oe”

thereby deprive a plaintiff, in a per-

sonal injury case arising out of an

automobile accident, of property in

violation of the Fourteenth Amendment

in that the issue of liability may be

tried separately and initially from the

issue of damages, which separate trial

thereby prevents such a Plaintiff from

introducing testimony on the damage issue

which bears upon and proves or substan-

tiates the defendant's liability or the

plaintiff's lack of contributory negli-

gence and such inability so to prove

lessens or destroys the value of the

plaintiff's cause of action or renders

insufficient or weakens the plaintiff's

Swuswee’

proof on the liability and his cause of

action and also does not present to the

trier of the facts the correct and true

picture of the liability situation?

2. As applied to the instant fact

situation, can the New York judiciary,

in violation of infant plaintiff's rights

under the Fourteenth Amendment, order

and direct a separate trial on the

liability issue solely and without re-

ference to, and on the trial reject, any

proferred testimony or evidence concern-

ing plaintiff's injuries when she was

5 1/2 years old in 1959 when hit and

thrown 10 to 12 feet and thereby suffered

and still suffers from extensive brain

damage which prevented and still pre-

vents her from knowing or recalling

anything and therefore testifying about

the accident (i.e., she was and. is

practically and legally dead for this

case), and also compelling her to assume

the onus to prove her freedom from con-

tributory negligence which is not

assumed by others in analogous cases and

situations, and which condition also

permitted defendant, as the only witness

to the accident itself, to give several

versions at the second trial different

from and inconsistent with his earlier

claims and testimony, and simultaneously

prevent plaintiff from offering proof

of the impact or injuries so as not only

to prove her cause of action in direct

and positive terms but also to show and

prove that her injuries were in fact

caused by defendant's negligence, and

also to contradict and reply to defend-

ant's tailored testimony and thereby

present to the jurors the true picture?

3. On the facts as disclosed in

the record, was the infant plaintiff

deprived of her rights under the

Fourteenth Amendment in that she did

not receive a full and fair trial be-

cause of the state appellate courts'

sustaining of and the trial court's

rejection of proferred testimony on

the injuries claimed to bear upon and

disclose liability in fact, its failure

to relieve the infant plaintiff of the

burden of contributory negligence be-

cause she was unable to testify on

liability due to .extensive brain damage

resulting from the accident, its impro-

per and prejudicial refusal to dis-

qualify itself?

Statutory Provisions Involved

New York Civil Practice Law and Rules:

8603. Severance and separate trials

In furtherance cf convenience or

to avoid prejudice the court may order

a severance of claims, or may order a

separate trial of any claim, or of any

Say Pe a ee

separate issue. The court may order

the trial of any claim or issue prior

to the trial of the others. (Vol. 7B

Mckinney's Consolidated Laws of New

York Annotated)

Statement of the Case

In the daylight of the early even-

ing of July 31, 1959, the infant

petitioner, who was then five and one-

half years of age and was not in the

cross-walk, stépped off the curb and

walked to the center of the roadway

where she was struck by an automobile

Owned and operated by the respondent.

The respondent did not sound his horn

or give any warning of his approach.

The street was a one-way street in a

residential area of Brooklyn, New York,

with private homes on each side which

were separated by driveways. Cars were

parked at both curbs, but there were

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spaces between the cars. Children were

Playing on the sidewalk at the time.

The respondent lived around the corner

and was familiar with the neighborhood.

He had seen children playing in the

roadway of that street on prior

occasions.

The only persons to witness the

accident were the respondent and the

infant petitioner. As a result of the

accident among other severe injuries

the infant petitioner suffered damage

to her brain resulting in traumatic

epilepsy and amnesia. Consequently,

the respondent was the only eyewitness

who could testify as to the happening

Of the accident.

The action in negligence was

thereafter commenced to recover damages

for personal injuries and medical expen-

ses.

Pursuant to Section 603 of the

wre y OO -e_s e SEE I DS SANA OPN ES NORE Ss EMRE RE

Civil Practice Law and Rules of New

York, the case was tried before a

jury on the issue of liability only.

As the only eyewitness who could

testify as to the happening of the

accident, the respondent gave the fol-

lowing version of how it occurred. He

was riding down the street at fifteen

miles per hour and didn't see the infant

petitioner until she emerged from be-

tween two parked cars and ran into his

vehicle. From the time he saw her till

he hit her was “practically instantan-

eous" (350-352). From the time he saw

her until he brought his car to a com-

plete stop, it traveled half a car

length (361). Upon impact the child

dropped to the ground (370-371).

Petitioners attempted to prove

that he was going much faster and did

see the child much soorer but couldn't

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stop because of his speed. They sought

to prove speed through the distance the

child was thrown and the extent of her

injuries. However the Court sustained

objections to the extent of injuries

even though it was urged it was on the

issue of liability.

The jury rendered a verdict dis-

missing the complaint. An appeal was

taken to the Appellat:e Division the

petitioner's contended that the unfair-

ness of the trial rulings denied them

due process of law as guaranteed by the

federal constitution and cited the

refusal to permit evidence of the ex-

tent of injury which was pertinent to

the issue of liability as it was re-

levant to the speed respondent's

vehicle was travelling.

The Appellate Division reversed

the judgment and ordered a new trial on

the issue of liability only. It re-

versed because of prejudicial errors

made in the admission of evidence, in-

Cluding a photograph of an apartment

house which was not in existence at the

time of the accident which unfairly

Supported respondent's version of the

accident, as well as errors in the

charge concerning speed of the vehicle,

the infant petitioner's standard of

care, her right to cross the street

other than at the cross-walks and in

many other respects. The Opinion is

included in the appendix to this peti-

tion. Nowhere in it did the Court

treat of the constitutional question.

At the outset of the second trial--

that is, during the voir dire to select

the jury -- the same judge who presided

at the first trial ruled petitioners’

attorney was precluded from making the

jury aware during the case of the fact

that the infant petitioner sustained

serious injuries including brain damage

resulting in epilepsy and amnesia. He

shut off argument as to why it should

be permitted and granted petitioner an

exception to his ruling (2-5).

When the jury was completely se-

lected and the case assigned to a part

for triel it was ascertained that the

Judge who was to preside had threatened

to hold the petitioner's attorney of

record, the infant petitioner's grand-

mother, in contempt of court in the

only case in which she was ever a

plaintiff, and that he still remembered

the incident. The petitioners’ trial

attorney also had an appeal pending from

a recent trial in which this Judge pre-

sided in which much of his brief was

devoted to contention of errors committed

by this Judge in the admission of

evidence and prejudice caused by his

active role as an advocate and in ren-

dering inflamatory gratuitous statements

to the jury. As a consequence, it was

requested that he disqualify himself,

but he refused (6-11).

On the second trial the respondent

was again the only eyewitness who could

testify as to the happening of the acci-

dent. Aware of the observation in the

Appellate Division's decision that if

the cars were not parked as close as

depicted in the inaccurate photo intro-

duced on the first trial "this would

bear on the question of whether or not

the [respondent] should have seen the

child much sooner than he did had

he been exercising reasonable care”

(Dugan v. Dieber, 32 A.D.2d 815), the

respondent altered his version of the

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accident to avoid lack of care for this

reason. He also altered his testimony

for the purpose of convincing the jury

that the infant petitioner was contri-

butory negligent. The lack of regard

the respondent had for the truth and

his oath almost defies human experience.

In response to the question of where

the infant was when he first saw her he

gave many different answers between his

examination before trial, on the first

trial and on the second trial: "I saw

her when she just about touched my hood"

(252); “Emerging from behind the car”

(358); “About 4 or > feet [away]" (335);

“That is when you saw her, 24 feet away,

right? Yes sir.” (359). Thus between

trials he altered that distance from

just about touching the hood of his car

to 24 feet. For the sake of consistency,

he had to revise his testimony on the.

first trial to the effect that the child

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dropped to the ground, but certainly

not so much as would indicate his car

was traveling at an excessive speed.

On his examination before trial, he

stated “she fell back" at one point

(252p); and, "thrown onto the sidewalk.

To the street" at another point (252i).

On the second trial he bridged the gap

with “Thrown or fell" (371). He further

allowed that she was thrown “Approximate-

ly 3 to 4 feet in front of the car" (371).

The petitioners sought to establish

excessive speed and lack of care by the

respondent through the length of skid

marks and stopping distances at various

speeds (178-181); the distance the child

was thrown on impact which was 10 to 12

feet (182); and his failure to sound his

horn. No evidence of extert of injury

was introduced because of the prior

ruling and the exception allowed.

During petitioners’ case, the Court

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instructed the jury that no inference

is to be drawn that the infant petition-

er's lack of memory is due to the acci-

dent (19-20).

At the close of the petitioners’

case, the respondent moved to dismiss

the complaint for petitioners’ failure

to prove freedom from contributory

negligence. Petitioners' attorney

argued that inasmuch as the child had

amnesia as a result of the accident

and could not testify as to how it

happened, she was in legal contemplation

"dead" for this purpose and that, as in

a wrongful death action, the burden of

proof on that issue should be borne by

the respondent. The respondent did not

urge that this was not reasonable, fair

or logical. He objected on the ground

that "there is no proof of amnesia",

Of course there was no such proof; there

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could be none under the circumstances.

As set forth above, it was ruled by the

Court at the outset of the trial, at

respondent's insistence, that no such

proof was to be adduced by petitioners,

that such proof was improper in a trial

solely on the issue of liability and

exception was allowed to this ruling to

preserve petitioner's rights to review

this question. The Court tacitly acceded

to respondent's position but failed to

rule on the motion. This put respondent

in the ideal position of being able to

point out to the jury that the petitioners

had the burden of proving freedom from

contributory negligence though he knew

they should not have such burden and the

reason they had it was because they could

not adduce evidence to have it shifted

because of a ruling which they had to

adhere to because they had been granted

legal protection. Respondent thereafter

capitalized on this position to the

extent that he reduced the trial from

@ search for the truth to a solemn

mockery. In Summation, and knowing

that petitioners could not rebut it

because of the ruling and the fact that

they had an exception, respondent's

counsel told the jury:

the burden of proof in proving

reason or another. Now, I

say to you, is that proof,

is that proof?" (409-411)

To insure the prejudice created,

respondent made the “burden of proof"

the theme of the next few minutes of

his summation by stating it with empha-

sis five separate times during that short

interval.

As there wasn't and couldn't be

any evidence of amnesia in light of the

prior ruling, there was no basis upon

which the burden of proof of contribu-

tory negligence could be shifted. The

Court therefore charged that the peti-

tioners had the burden of proving free-

dom from contributory negligence: "The

plaintiff must satisfy you that she was

free from contributory negligence."

- + + sWith this in mind you decide

whether or not the plaintiff has esta-

blished her freedom from contributory

negligence, whether or not she has

established the second of the two ele-

ments." (emphasis supplied). Later in

the charge he stated:

"I am going to give you an

illustration of what is meant

by burden of proof. Let's take

this case A sues B. The testi-

mony submitted by A in this

illustration in Support of his

case that the testimony sub-

mitted by B in Opposition to

A's case is equally convin-

cing, in that case the verdict

must be in favor of B because A

would have failed to establish

his case by evidence which

outweighs the evidence of B.

Of course, if A's testimony

is more Fonvincing, has .

greater appeal than B's testi-

mony, your verdict will be in

favor of A. And lastly, if B's

testimony is more convincing

then your verdict will be in

favor of B."

"And so in this case the

plaintiff has the burden of

proof as to the issues in-

volved in this case, that Ls

the issues being her proof

that the defendant was negli-

gent and she was free from

contributory negligence."

(477-478)

After the Court completed its

charge the petitioner's counsel, made

the following objection:

"Then just for the record

Judge, I acceded throughout the

course of this trial according

to his Honor's direction not

to go into any injuries sustained

by this infant plaintiff and I

would like to put on the record

the fact that in a case of this

Loh) aad atl td

type where speed of a vehicle

and looking out were so essen-

tial as part of my proof, the

preclusion by the Court of

any allusion to the injuries

sustained by the infant under

the Benatti against the New

York City Transit Authority

doctrine, I feel was prejudi-

cial, in error and I acceded

to it because the Court said

that this is the structure

and the interdiction of the

Appellate Division. But

nevertheless to protect the

record, I would like to

take exception throughout

the course of the trial to

the Court's refusal to grant

me such permission.

THE COURT: You have your

exception (481-482).

Such ruling, summation and charge

insured a verdict for the respondent,

and the jury rendered such a verdict.

' The petitioner thereafter moved to

eet the verdict aside. The Court

denied the application in a memorandum

decision which is included in the

appendix to this petition. A judgment

was entered on the verdict.

Petitioners appealed to the

Appellate Division fron the judgment

and order denying the motion to set the

verdict aside. On the appeal, the

petitioners urged, among other thirgs,

that the refusal to allow petitioners

to show the nature of the injuries sus-

tained by the infant on the trial vio-

lated their constitutional rights. The

Appellate Division affirmed the judgment

and order below without opinion. A copy

of its order of affirmance entered on

February 16, 1971 is included in the

appendix to this petition.

The petitioners thereafter took an

‘appeal to the Court of Appeals as a

matter of right and also moved before

the Appellate Division for leave to

appeal to the Court of Appeals. The

respondent moved to dismiss the appeal

taken to the Court of Appeals as a matter

of right “on the ground that no consti-

tutional question is directly involved

herein". By an order entered on April

9, 1971, a copy of which is included in

the appendix hereto, the Appellate

Division denied the application for

leave to appeal to the Court of Appeals.

By an order entered April 15, 1971, a

copy of which is included in the appen-

dix hereto, the Court of Appeals dis~-

missed the appeal taken as a matter of

right, but on the ground that "no

substantial constitutional question is

directly involved." The petitioners

thereafter made a timely application for

leave to appeal to the Court of

Appeals. By- order entered July 7, 1971,

a copy cc. which is included in the appen-

dix hereto, the Court of Appeals denied

the application for leave to appeal.

The Reasons For Granting

the Writ, and Arguments

Thereon

A. In General

The reasons generally relied on for

the allowance of the writ herein, and as

discussed further below, are that sever-

al violations of the Fourteenth Amend-

ment were indulged in by the State of

New York in that its judiciary, in an

automobile negligence case, by ordering

a split trial first on liability and

then on damages, prevented the plaintiff

from introducing testimony concerning

the injuries which are required to show

in fact that these were caused by

defendant and so to prove in some

degree his liability; secondly, to tie

in and link with defendant's conduct

and plaintiff's injuries the inference

and proof of defendant's negligence

which otherwise could not be done in

this case because of the continued

brain damage to the infant plaintiff

and the defendant's tailored testimony

as the only witness to the accident

(lidbility); thirdly, that under the

circumstances in this case where the

infant plaintiff is for all practical

purposes dead, there should be no onus

placed upon her concerning her freedom

from contributory negligence so that

in so requiring she was deprived of

her property rights, or cause of action,

by compeiling her to add an essential

element thereto, and, additionally and

separately, a further violation of

said Amendment in that this was and is

not required of others under analogous

circumstances; and, fourthly, that

there was an improper and unfair trial

which did not conform to the standards

of due process.

B. Principles, Facts, and Law Involved

New York's Civil Practice Law &

Rules g603 is vivlative of the Four-

teenth Amendment and unconstitutional

when applied in a personal injury case

arising out of an automobile accident

where a split trial is ordered first on

liability and on its face the statute

therefore prevents a plaintiff from

introducing testimony on the damage

issue which may or does bear upon and

prove or substantiate the liability

testimony or issue and such inability

so to prove lessens or destroys the

value of the plaintiff's cause of

action or weakens the plaintiff's

proof on the liability and cause of

action and also does not present to

the triers of the facts the correct

and true picture of the liability

ee Oe epee

situation.

A.) A common law cause of action

by Jones against Smith, both private

persons, is ordinarily private property.

A state's deprivation of such property,

without more, is a violation of the

Fourteenth Amendment's Due Process

Clause, and may also violate the Equal

Protection Clause. A private cause of

action involves a fact situation which

contains certain essential or required

elements. If one such essential element

is missing there is an insufficient

cause of action alleged or proved. If

one essential element is added by a

state, «without more or justification,

and thereby increases plaintiff's

burden, this, too, is an impairment of

one's said property rights becauze it

now lessens or destroys the value of

the original cause of action.

Phrased differently, a private

common law cause of action is ordinarily

to be protected on behalf of a plaintiff

or required against a defendant, and in

either case not to be tampered with,

except where a sufficient reason is

shown; for example, before workmen's

compensation, the proof of freedom from

contributory negligence, or the defenses

of master-servant, etc. were upheld,

but the inhuman consequences of an

industrial-legal system compelled a

change. See e.g., 35 Stat. 556, c.236

(1908), found today in 5 U.S.C. §8101

et seq., and for the F.E.L.A.'s provi-

sions see 45 U.S.C. 653 et seq. While

the employer's liability to the employee

under such compensation act is exclusive,

5 U.S.C. §8173, there is substituted

therefor outright compensation regardless

of the employee's own contributory

= we — st i a tar en end ters

negligence; however, the employee's

private suit against a third person

for that person's negligence is still

permitted, §8132, and see also New

York's Workmen's Compensation Law 829(1).

B.) So in the cause of action

involved herein. The four essential

elements ordinarily required to be

proved in some manner by a tort plain-

tiff are: the duty of the actor, his

failure so to comply, a causal connec-

tion with the injury, and the actual

loss or damace to interests, W. Prosser,

Handbook of the Law of Torts 143 (4th

ed. 1971), which can be compressed into

the two items of liability and damages.

Contributory negligence, as a defense,

is of comparatively recent development,

e.g., in England in 1809 and in the

United States in 1824, ibid., at 416,

fn.l1. As between private persons, where

no overriding public or governmental

interest appears, these elements are

not to be lessened or destroyed or

otherwise trifled with by the states,

legislatively or judicially, and ordin-

arily are constitutionally sacrosanct.

C.) New York's C.P.L.R. 8603

authorizes, among other things, split

trials in negligence cases so that the

sole issue of liability is tried separ-

ately and first; then, if plaintiff is

successful, a second trial is had

solely on the damages involved. The

federal analogue is F.R.C.P. 42(b) and,

insofar as here pertinent, both statutes

are identical in their language.

There is no argument that in many

cases, for example, patent infringement,

the issue of damages can be separated

from other issues and submitted independ-

ently to the triers, and that proof of

any portion or peripherally connected

item of damages is not ordinarily

necessary in a trial limited solely to

the issue of, for example, infringement.

See, e.g., Swofford v. B & W, Inc., 336

F.2d 406, 415 (5th Cir. 1964), cert.

denied 379 U.S. 962 (1965). Thus, while

"(t)he trial piecemeal of separate

issues in a single suit is not to be the

usual course," 2B Barron & Holtzoff,

Federal Practice & Procedure 8943, at

187 (Wright ed. 1961), still, for the

reasons behind Rule 42(b) and 8603,

other types of suits besides patent ones

may likewise be so treated, i.e.,

separate trials on several issues.

There is, however, one important quali-

fication, furthered by a corollary.

That important qualification is

expressed in Gasoline Products Cc, v.

Champlin Refining Co., 283 U.S. 494,

Telitcntonmdinnsueiee

900 (1931), where the Fifth Circuit

reversed in a suit for royalties in

which counterclaims were interposed,

directed a new trial, but restricted

the issues to the determination of

damages; in reversing and directing a

new trial on all the issues raised by

the counterclaim, Mr. (later Chief)

Justice Stone wrote (in language equally

applicable here to split trial cases)

for an unanimous Court:

"Where the practice permits a

partial new trial, it may not pro-

perly be resorted to unless it

Clearly appears that the issue to

be retried is so distinct and

separable from the others that a

trial of it alone may be had with-

out injustice. ...Here the ques-

tion of damages on the counter-

claim is so interwoven with that

of liability that the former can-

not be submitted to the jury

independently of the latter

without confusion and uncertainty,

which would amount to a denial of

a fair trial. ..."

Analogously in Norfolk S.R. Co. v.

Ferebee, 238 U.S. 269, 273 (1915), an

F.E.L.A. case, where the North Carolina

Supreme Court reversed and granted a

new trial limited solely to the assess-

ment of damages, and where the facts on

contributory negligence were then oo

Cluded by the trial court, the unanimous

affirmance of the lower judgment by this

Supreme Court was only because the re-

cord disclosed that plaintiff was not

guilty in fact of contributory negli-

gence so that no federal substantive

right cr defense was involved, and the

split new trial “in this particular

instance [did not] operate to deprive

the defendant of a Federal right," the

Opinion nevertheless contained this

language:

“But a substantive right or

defense arising under the Federal

law cannot be lessened or des-

troyed by a [state] rule of

practice. Damages and contributory

negligence are so blended and

interwoven, and the conduct of

the plaintiff at the t:ime of

the accident is so important

@ matter in the assessment of

damages, that the instances would

be rare in which it would be pro-

per to submit to a jury the ques-

tion of damages without also per-

mitting them to consider the con-

duct of the plaintiff at the time

of the injury."

In the Ferebee opinion, at 274, the

Court also approved and adopted the

state court's language, that before

granting a partial new trial it shoulda:

“Clearly appear that the matter

involved is entirely distinct

and separable from the other

matters involved in the other

issues and. . . that no possible

injustice can be done to either

party. ..."

New York is not opposed to such

doctrine or principles. For example, in

Bennetti v. N.Y.C. Transit Authority,

22 N.Y.2d 742, 743, 239 N.E.2a 215 (1968),

the entire bench apparently agreed in

principle that where “the speed of the

vehicles was an essential element of

plaintiffs’ case on the issue of due

care," then “(t]he exclusion of evi-

dence of injuries. . .was reversible

error in that such evidence had a direct

bearing on the force of the impact and

the relative speed of the vehicles

involved. . . ." The only reason for

the dissent was that the majority felt

that “(i]t is manifest from the record"

that the preceding language applied,

whereas the minority apparently felt

that in the case before it "evidence of

plaintiffs’ injuries has no bearing

either on the defendant's negligence or

on the speed at which its bus was tra-

veling." Regardless, Bennetti is the

law, and both the First and Second De-

partments of New York's Appellate

Division likewise so hold. Culley v.

City of N.Y., 25 A.D.2d 519, 520,

267 N.Y.S.2d 282 (1966), Lowe v. Board

of Education, at A.D.2d — i 321 N.Y.S.2d

508 (May 3, 1971).

In Culley the unanimous court re-

versed and directed a combined trial of

liability and damages, and wrote that

“whe-e the nature of the plaintiff's

injuries has an important bearing on

the issue of liability, a separate trial

should not be ordered," because there,

“{iln order for plaintiff to prove his

case he must show that his injuries were

in fact caused by defendant's negli-

gence. ... Essential to such deter-

mination is the nature and type of

injuries." In Lowe a like reversal and

combined trial was unanimously directed

because while in a case “where causal

connection is evident the medical proof

is reserved" for a separate trial on

damages, in "this particular case, the

causal connection is of such a nature

as to require expert medical opinion."

(It may be parenthetically noted that

New York's Judicial Conference records

do not indicate how many, if any,

split negligence trials, or other trials,

were directed, nor any statistics of aid

herein. Report for 1969-70, Leg.Doc.

[1971], No. 90, Table 8, facing page A58

(nor do the federal records so indicate] .)

Of course an appellant seeking a

new trial expressly or impliedly consents

to such a partial reversal, as he is or-

dinarily requesting the exercise of dis-

cretion, whereas under F.R.C.P. 42 (b)

or C.P.L.R. §603 an objecting party may

nevertheless be so compelled to try a

case; or, even where all parties at the

outset consent to such a split neqli-

gence trial (in Bennetti, supra, at 743,

“[bly agreement of counsel, the case was

tried solely on the issue of liability,"

and the Court of Appeals nevertheless

held that evidence of the injuries

"should have been allowed, accompanied

by an appropriate limiting instruction"),

a construction by the trial court pre-

venting the introduction of testimony

directly or peripherally on the damages

so as to prove or bolster plaintiff's

case or contradict the defendant on

liability, is unfair, precludes a fair

trial, deprives plaintiff of her con-

stitutional rights, and was here opposed

by the plaintiff (2-5, 19-20 (instruction

by court that no inference is to be

drawn that plaintiff infant's lack of

memory is due to accident), 264 [sustain-

ing objections to permitting father of

infant to state where, that is, the

hospital, child was taken after accident],

and 481-2, further discussed below). And

Champlin Refining and Ferebee, supra,

although involving federal statutes

and federal statutory rights, handled

by state courts, are even more appli-

cable here where federal constitutional

rights are involved and where, addition-

ally, as Mr. Justice Stone commented,

“a denial of a fair trial" would occur.

D.) The qualification on split

trials, previously Gisclosed, is that

where a trial of a single issue cannot

be had without injustice, a denial of

a fair trial occurs; the corollary, of

course, is that the interests of justice

wouid be served by one normal, regular,

complete trial of the issues, and,

additionally, there would not be a

denial of a fair trial (in Lowe, supra,

the Second Department reversed “on the

law and in the interests of justice,”

at --, 509).

LEO om OH el a

Included in this qualification and

coroilary is the inseparability aspect,

that the relevant and pertinent evidence

on two (or more) issues Overlaps, so

_ that rejection of evidence on the

injuries which bears upon the liability

in a negligence case lessens or destroys

a plaintiff's rights. In other words,

where such evidence is so inextricably

intertwined with more than one issue,

so as to result in a failure by plaintiff

to prove his case without that evidence,

or its rejection so lessens or weakens

plaintiff's case as to bring into sharp

question the ability of the triers to

Gecide fairly and objectively, an unfair

trial occurs, and a statute so permitting

is to be denounced as a deprivation of

plaintiff's property and other rights,

or else the court's exercise of its

power in the particular case, even

though it properly interprets the sta-

tute but now misapplies it, is to he

$0 also denounced.

Thus in particular, and as applied

to the instant fact situation, the New

York trial and appellate courts, in

violation of the infant's rights under

the Fourteenth Amendment, ordered a

separate trial on the liability issue,

and they then upheld rejection of all

proferred testimony or evidence con-

cerning plaintiff's injuries when she

was 5 1/2 years old in 1959 and thereby

suffering and still suffering from exten-

Sive brain damage which prevented and

still prevents her from knowing or re-

calling anything and therefore testify-

ing about the accident (i.e., she was

ang is practically and legally dead for

this case), and also and separately com-

pelling her to assume the onus of

proving freedom from contributory negli-

gence which is not assumed by others in

analogous cases and situations and which

condition also permitted defendant, as

the only witness to the occurrence, to

give several versions at the second

trial different from and inconsistent

with that of his earlier testimony on

the first trial and simultaneously pre-

venting plaintiff from offering proof

of the impact or injuries so as not only

to prove her cause of action in direct

and positive terms but also to show and

prove that her injuries were in fact

caused by defendant's negligence and

also to contradict and reply to defendant's

tailored testimony and thereby present

to the jurors the true picture.

A.) In the conclusory sentence of

the preceding argument it was suggested

EO LO LOTT I Ow

2 a eee 20 ener 2

that even if C.P.L.R. 8603 were to be

upheld because it, on its face and with-

out more, was not unconstitutional,

still, in the instant case, and under

the particular and limited facts herein,

the exercise of power thereunder was now,

if not generally, to be denounced. Be-

sides what has already been said in the

above argument, additional reasons

follow.

B.) Defendant's ultimate liability

herein would ordinarily also depend upon

plaintiff showing freedom from contri-

butory negligence (if it applied). The

facts disclose tnat defendant urged

most vociferously such contributory

negligence burden on the part of this

5 1/2 year old infant. Defendant's

vociferousness may also be compared to

diarrhea of the mouth. The record is

replete with his numerous testimonial

PES COTO RAE (E Pee,

changes, alterations, and downright

reversals in and of the occurrence, all

bearing on the infant's alleged contri-

butory negligence, for example, at

pages 15-17, supra, such instances are

referred to and two of them (when, de-

fendant claimed, he first saw the infant

“when she just about touched my hood"

and, again, when she was "24 feet away")

must mean that, if they are both true

and to be reconciled, this infant had

arms almost 24 feet long! Even the

New York Court of Appeals takes judicial

notice of the physical’ impossibility of

a human being's body being ridiculously

out of proportion, Hunter v. New York,

Ontario & Western R.R. Co., 116 N.Y. 625,

23 N.E. 9 (1889), and this principle

likewise applies here.

To prove defendant's liability and

her freedom from contributory negligence

the infant had to present not only evi-

dence affirmatively so disclosing

but also evidence to counter all these

prevarications by the defendant; one

reason is that under our adversary sys-

tem a trial involves not only the

affirmative presentation of evidence

but also the disproof (by rebuttal,

cross-exarination, or otherwise) of

the other party's contentions. This

infant had been thrown a distance of

between 10 to 12 feet (182), rendered

unconscious, had a broken wrist, suffer-

ed a brain injury resulting in traumatic

epilepsy (see, for example, plaintiff's

bill of particulars, xix), and yet the

defendant had the gall to swear, not

once but twice, that “when this acci-

dent happened” “I was at a complete

stop at the point of impact” (320),

that his car “was at a complete stop”

(370). How refute this? By direct

evidence to the contrary if, and only

if, a witness could so testify, for

example, the defendant's own examina-

tion before trial in which he first

stated that the infant “was thrown"

(2521) and, later on, “[{a]pproximately

three to four feet in front of the car"

(371); or, perhaps, by disclosing phy-

sical facts otherwise; eto. If, thus,

a child ran into a stopped car it would

be extremely unlikely, undoubtedly im-

possible and in any event highly impro-

bable, for her to be the recipient of

such severe injuries. So that disclos-

ing even only the fact that injuries

occurred, if ase cuits nature, extent,

@duration, etc., and connecting mereiy

the fact of injuries to the accident

causally, would tend to refute defend-

ant's contentions of his non-lhiability

and plaintiff's contributory negligence,

and tend to substantiate plaintiff's

——__-7iiOox—<——_—_—_—__————————_—

contentions on liabi ity, and would

strengthen and support plaintiff's case.

The evidence on damage was, there-

fore, in the context of this case, and

based on defendant's own volunteered

and tailored testimony, indissolubly

connected and inextricably intertwined

with the proof of the defendant's

liability, as Champlin Refining, Ferebee,

Bennetti, Culley, and Lowe, supra, all

disclose and confirm.

C.) Damages, and their proof, are,

as shown above, necessary and essential

ingredients to success in a personal

injury accident case. Even if defend-

ant is negligent, and plaintiff is free

from contributory negligence, there can

be no recovery sans damages. See, e.g., .

M. Forkosch, Summary Judgment in Auto-

mobile Negligence Cases: A Procedural

Analysis and Suggestions, 53 Cornell L.

Rev. 814, 817-18, fns. 15-16 (1968),

disclosing instances of the rejection

of plaintiff's motion for summary

judgment, and requiring a plenary

trial, where defendant concedes liabil-

ity but, in its answer, merely denies

generally the resultant (existence) of

Claimed damages. split trials this

issue and question may, perhaps, some-

times be permitted to intrude, but

where, as here, the actuality of

damages bears upon and is unquestion-

ably required for the proof of the

liability per se, and a tortured con-

struction of a statute, or its tortured

application, prevents plaintiff from

offering any facts involving injuries

on the question of liability because they

also bear upon damage. then unconstitu-

tional deprivations occur.

The vice in such a situation is

mS ee Ee Oe ae NT eT

that many courts fail to see that fact

A. may be wow af as proof of X., even

though it also may be proof of Y., and

Y. may not be in issue or else to be

tried separately later on. Fact A. may,

of course, be cumulative, and therefore

may sometimes be properly rejected as

overly-cumulative, but in the instant

case it was not only necessary to

prove X., i.e., liakility, but it was

the only way so to prove in and through

the injuries (the second aspect of A.

now to be used, and as in Champlin

Refining through Lowe, supra), and,

additionally, it was also to be used to

refute defendant's tailored testimony.

It may be further added that the

improper and unconstitutional conduct

of the trial judge in not permitting

testimony on the damages (to prove

plaintiff's case on liability, or to

disprove defendant's lies, or both)

cannot be upheld because of any consent -

to the split trial (see Bennetti, supra,

at 743, quoting this exact fact there,

also quoted above at page 39, with the

reversal nevertheless occurring) or any

so-called direction by the Appellate

Division when the appeal after the first

trial resulted in a reversal and send-

ing it back for a new trial, for the :

direction was pro forma, based on the

earlier consent, and neither of these

precluded the admission of the evidence

. On interconnected and necessary proof

of the injuries to disclose liability

(or disprove defendant's lies, or both).

D.) Even if the burden of the

lack of contributory negligence were

removed from plaintiff's shoulders (for

the New York death statute, adopted

within a year after Lord Campbell's Act

was passed, was early construed to shift

the burden of proof in this respect,

@.g., McKay v. Syracuse Rapid Transit

Co., 208 N.¥. 359, 101 N.E. 885 [1913],

and in negligence actions alleging vio-

lations of rules cf safe operation

under the state's Labor Law the plaintiff's

contributory negligence affords no defense,

Koenig v. Patrick Const. Corp., 298 N.y.

313, 317, 83 N.E.2a 133[1948]), still,

there would remain the burden of proof

of defendant's liability, and here,

again, as just shown above, the evidence

on the damages sustained by plaintiff

was necessary.

E.) Regardless, separately, and

additionally, such burden of lack of

contributory negligence was in effect

foisted upon this plaintiff, factually

brain damaged, biologically alive but

legally dead (i.e., she could not siqn

a contract or otherwise act legally),

without equating her with others onak-

ogously so situated, and this was a

further denial of her rights under the

Fourteenth Amendment. For example, a

plaintiff of impaired mentality is, in

many jurisdictions, enabled to utilize

those substantive rules of negligence

law which apply to children, e.g.,

Johnson v. St.Paul Ry. Co., 67 Minn. 260,

69 N.W. 900 (1897), so that, pari passu,

a mentally impaired child should be

treated doubly tenderly. Furthermore,

such a mentaliy impaired infant should

be analogized to the Situation in which

the New York judiciary, in a death Case,

does not hold the plaintiff to as hich

a dines of proof of the cause of action

as where the injured plaintiff can

herself describe the accident, e.c.,

Noseworthy v. City of New York, 298 N.Y.

Te Me Ce eee Ne

76, 80, 80 N.E.2d 744 (1948). This

was the argument made herein, but the

trial court (upheld by the appellate

courts) refused to consider her con-

dition made her “the same as if she was

legally dead and the burden" shifted

(268), merely mouthed the view that .

she did not have to be held to the same

proof as if able to testify (269) but

then in fact so did hold her as above

indicated and further disclosed in the

record (e.g., at 481-2, after the trial

judge's charge, plaintiff's attorney

excepted thereto in several respects,

at one point stating: "Then just for

the record, Judge, I acceded throuch-

out the course of this trial according

to his Honor's direction not to ago into

any injuries sustained by this infant

piaintiff and I would like to put on

the record the fact that in a case of

this type where speed of a vehicle and

looking out were so essential as part

of my proof, the preclusion by the

Court of any allusion to the injuries

sustained by the infant under the

Benatti against the New York City

Transit Authority doctrine I feel was

prejudicial, in error and I acceded to

it because the Court said that this is

the structure and the interdiction of

the Appellate Division. But neverthe-

less to protect the record, I would

like to take exception throughout the

course of the trial to the Court's

refusal to grant me such permission.

THE COURT: “You have your exception").

Whether or not the classifications

in the preceding paragraph are valid is

presercly immaterial; they do exist and

were applied, and so in this particular

‘case this plaintiff may avail herself

ee te a ae Se ee, ee, ene |

Ne NO en a ye

of the rights thereby incurred, for

example, freedom from the burden of

showing lack of contributory negli-

gence, or not to be held to as high a

degree of proof to show defendant's

liability or her freedom, or, at the

very least, to be permitted to offer

evidence on her interrelated and inter-

twined damages so as to prove her case

and disprove defendant's contentions

and alleged evidence. Whether under

the Fourteenth Amendment's Due Process

Clause because of the lack of a fair

trial, or its Equal Protection Clause

because of the lack of equal protection

as shown above, this plaintiff shoulda

meeitoi be entitled to the granting

of the writ petitioned for herein so as

to have either C.P.L.R. $603 held un-

constitutional or, in its present

application under the particular facts

eee ated

” s Po a ohh os

a ell

DPA A Be me

herein, likewise so denounced.

3. |

On the facts as disclosed in the

record, the infant Plaintiff was de-

prived of her rights under the Pour-

teenth Amendment because she did not

receive a full and fair trial due to

the Sustaining of and the trial court's

rejection of proferred testimony on the

injuries claimed to bear upon and dis-

close liability in fact, its failure to

relieve the infant Plaintiff of the bur-

den of contributory negligence because

she was unable to testify on liability

due to extensive brain damage resulting

from the accident, its improper and pre-

judicial refusal to disqualify itself,

and its subsequent improper and pre-

judicial conduct.

A.) Procedural due process requires

a fair trial, free of a variety of in-

cidents, occurrences, distractions, and

other factors militating against such

constitutional right and command to

State judiciaries. In the instant case

certain reasons for contending a denial

of this constitutional right occurred

herein have been discussed. But others

exist, for example, the bias of the

trial judge, and it is only a few of

these others which are presently cis-

cussed, élse the record would have to

be presented in full. The general pic-

ture of an unfair trial nevertheless

comes through when the entire record

is reviewed.

The trial judge's bias is disclosed

first by his refusal to disqualify him-

self (6-11) even though trial counsel

was then appealing another and different

case in which the judge and counsel were

vy EDD eS PRE NIE ELT SOE TL TET IT TT Ie RE eT NTE EIN Rt ON

involved, and the latter's “brief and

argument therein is devoted to errors

by the trial Judge both as to evidenti-

ery matters and also as to the active

role as an advocate that the Judge took

in the trial of the matter [plus other

items]. ... [T]he attitude of the

Court towards me in that case was such

and the bad feelings that resulted

therefrom that in the interest of justice

in this case, the climate of the case

would not be conducive to a fair trial

on behalf of this infant plaintiff and

her father” (9). In addition, although

the trial judge felt that he had no

memory thereof, counsel next brought up

a case some many years ago in which the

infant's grandmother, an important wit-

ness now for the plaintiff infant, had

herself been a plaintiff before the

Same judge, and in that case the grand-

eee oe :

a WI! Ae ee Oe | ee

eae

mother had been threatened by this judge

with contempt during her examination (9).

Bias is further disclosed even

and especially after the trial proper,

when, for example, the trial judge charged

the jury (albeit here properly) that

Plaintiff had the burden of proof to es-

tablish her case by a fair preponderance

"of the believable evidence," “the be-

lievable testimony," and that testimony

"which you do not believe is not entitled

to any verdict (sic]" (477), but in no

place (and now improperly) did the judge

ever refer to the defendant's side of

the testimony in the same language, that

is, say that his and his witnesses’

testimony had to be “believable,” as

well as "believe([d]," i.e., both sides

should have been so equally treated.

oes

C. Conciusiors

The record discloses a normal

3 1/2 year old girl, brain Gamaged by

the defendant's negligent driving,

but prevented from presenting her case

fairly and properly by: (1) a statute

which is either itself bad, i.e.,

unconstitutional as above indicatec;

(2) or else bad as applied herein,

and all this regardless of the state's

interpretation placed upon the language

of this law, together with the unconsti-

tutionally unequal treatment accorded

this plaintiff; ind (3) in addition,

having an unfair and unconstitutional

trial occur because of not only the

preceding two subdivisions but in

addition because of the trial judge's

bias and conduct with the prejudice

resulting therefrom.

eS aaa” ca = ——e

It is respectfully submitted that

equity and justice, besides facts, law,

logic, and reason, cry aloud tor this

petition to be granted. This writ

should run with respect to the three

questions presented.

Respectfully submitted,

Mollie Dugan

Counsel for Petitioners

c/o Eileen Evans Newmark

567 Larkfield Road

East Northport, N.Y. 11731

Tel.: (516) 368-3400

Of Counsel:

Morris D. Forkosch

Fabian Palomino

Dated: New York, September 29, 1971

ONS Oe ere wee

APPENDIX A

Opinion of Appellate Division

Reversing Judgment After First Trial

—_— —_—

ROBIN DUGAN, an infant,

hy DONALD DUGAN, her

Guardian ad Litem, and

DONALD DUGAN, June 18, 1969

individually,

Petitioners, iar.

vs. 32 A.D.2d 915

JACK DIEBER, (Case 1)

Respondent.

—*

In a negligence action to recover

damages for personal injuries, medical

expenses, etc., Plaintiffs appeal from

@ judgment of the Supreme Court, Kings

County, entered February 23, 1968 in

favor of defendant, upon a jury verdict

after trial of the issue of liability

only. Judgment reversed, on the law

and in the interests of justice, and new

Appendix A

trial granted on the issue of liability

only, with costs to abide the event.

The findings of fact have not been

affirmed. In our opinion, the infant

plaintiff having been injured while in

@ roadway in 1959, it was error to ad-

mit into evidence a photograph of the

street to show parking conditions at

the time of the accident, when the

Photograph depicted the street some

years later when private dwellings se-

parated by driveways had been replaced

by apartment houses. This picture |

should not have been received in evi-

dence to show the parking Situation,

Since the trial court thereby fore-

Closed plaintiffs’ attorney from esta-

blishing that the automobiles were not

as close to each other as indicated in

the picture, because of the presence of

> pqnery

— WMROITH FED a te a aan 4 .

SO GOO ms OE

RT et aes

“©

SASORQE LOT

ome ees

Appendix A

driveways on the right-hand side at

the time of the accident which were not

shown in the picture. Defendant's

contention was that the child ran between

parked cars from the right side of the

roadway. If the cars were as close to

each other as shown in the picture it

would tend to Support defendant's con-

tention that he could not have seen the

child in time to avoid the accident.

On the other hand, if the cars were not

as close to each other on the richt-hand

Side of the street as was shown in the

exhibit, then this would bear on the

question of whether or not defendant shoulé

have seen the child much sooner than he

did had he been exercising reasonable

care. Accordingly, the admission of the

photograph was highly prejudicial. The

court also erred when it aliowed in

SEN ne

Appendix A

evidence the statement of Sally Smith,

without instructing the jury as to its

effect, particularly the lack of pro-

bative value. Since Smith said she

did not see the accident, defendant had

the right to confront her with her

statement indicating Otherwise. When

she was shown her statement, she said

it did not refresh her recollection;

and on redirect examination by plain-

tiffs' counsel she still insisted that

she did not witness the accident not-

withstanding what was contained in her

statement. Although the court remarked

cursorily, "I am taking it for the pur-

poses of credibility", that statement

would be meaningless to the average

juror and, therefore, the court should

have instructed the jury as to the

effect of the statement, namely, that

eli oni ~ LE EEE LS ROLL LDL OTE LIL SEO SEO: IO Bw Pe —— aS aE

~ PROSE °

Appendix A

it was received only for the purpose of

impeaching her Credibility and that it

had no probative value as to the happen-

ing of the accident. The trial court

charged that the only evidence in the

case On speed was that defendant was.

traveling at about 15 miles per hour and

that evidence of "Skid marks in and of

itself is no indication of speed of a

vehicle." In our opinion this was error.

Evidence of skid marks is pertinent and

admissible as bearing on the speed at

which the automobile was being operated

at the time of the accident (Saladow

v._ Keystone Transp. Co., 241 App. Div.

161). There was additional error in the

Charge, when the trial court stated,

“The law requires that she [the 5 1/2-

year old infant] use her eyes and guard

herself against any approaching vehicles”

= — o o> a

— OT OE Weegee ae. oe, tal - ~~

FE AA EA ION Perynrp ora ~)

he se,

' 6a

Appendix A

notwithstanding that this was followed

by a statement that the child was re-

quired to exercise that degree of care

which a reasonably prudent child of her

years, experience, intelligence and

degree of development would exercise

under the same or similar circumstances.

The vice in this instruction is that it

was confusing in that it stated that the

child was required to use her eyes and

protect herself against approaching

vehicles. Whether or not the child was

to protect herself against approaching

vehicles would depend upon her ability

to appreciate danger and to protect her-

self against it. This was the issue that

the jury was to determine, i.e., whether

or not she had the mental capacity to

be aware of danger and guard against it.

The court further gave the following

Appendix A

instructions: “The law does not say

where she riust cross a Street nor where

she must look nor how often she must

look. All that the law requires is that

she look and if she does so and finds

she proceed across, and, if an automobile

should be “pproaching, then it becomes a

question of how far was the automobile

away from him or her. Under the law the

infant plaintire has a right to cross

the street at any time, any place. The

law does not require her to cross at

court was setting forth the duty that

devolves upon an adult or one who is

sui juris and stressing that the infant

Appendix A

Plaintiff was required to look and see

whether any automobiles were &épproaching.

This instruction must also be deemed

confusing because the jury was told first

that the child was required to look and

then that she had to exercise only that

degree of care that a child her age would

be expected to exercise. The trial

court in its charge also summarized

various sections of the New York City

Traffic Regulations as follows: "Section

41, right of way in crosswalks, not-

withstanding the Provisions of sub-

sections A and B of this section no

Pedestrian shall suddenly leave the curb

or other place of Safety and walk or run

into the path of a vehicle which is so

Close that it is impracticable for the

driver to yield. Section 42, entitled

restrictions on crosswalks, subdivision

_——~ <=

Nidix A

A, a Pedestrian Crossing a roadway

other than Within a Marked or unmarked

Crosswalk, Shall yield the right o¢ way

to all vehicles Upon the roadway." tre

5 1/2-year-old Plaintirs had Violated

these regulations ang then determine

whether she had the mental Capacity to

understand the meaning of the recula-

tions and to comply with them. In our

Opinion this Was error. Although an

these regulations and compliance with

them. Hence, it was not merely confus-

ing to the jury, but also Prejudicia)

—— rt eee ee er ee o> Eee eee a 4

l0a

Appendix A

error to charge the contents of these

traffic reculations to the jury and to

submit to them an issue whether the child

knew and understood the regulations

and nevertheless violated them, Even

if we are to assume arcuendo that this

was a matter of fact for the jury to

decide, the charge was inadequate be-

cause it did not explain to the jury the

Significance of right of way or vielding

a right of Way as explained by the Third

Department in Chandler vy, Keene, (5 AD

2d 42, 45). Rabin, Acting P.J., Benjamin,

Munder and Martuscello, JJ., concur.

Kleinfeld, J., concurs in result.

lla

APPENDIX B

Memorandum Decision Denying

Motion to Set Verdict Aside

SUPREME COURT oF

THE STATE OF NEW YORK

APPELLATE DIVISIO

N: SECOND DEPARTMENT

—X

ROBIN DUGAN, an infant, by DONALD DUGAN,

her Guardian ad Litem

* and DONALD DUGAN,

individually,

Petitioners,

vs.

JACK DIEBER,

Respondent.

FEIDEN, J.

Cal No. 11958

Index No. 20426/62

Filed: August 27, 1970

This is a motion on behalf of the

infant plaintiff to set aside a jury

verdict in favor of the defendant in a

negligence action tried on the issue of

eR a aaah

l2a

Appendix B

liability.

Insofar as the application is based

upon statements of jurors made after the

trial to plaintiffs’ attorneys the

application is based on incompetent

proof and is utterly without merit. It

appears from the affidavit of Donald

Dugan that plaintiffs’ attorneys soli-

cited the jurors about their motives.

Aside from the fact that the ethics of

such conduct is questionable (Sindle v.

761 Ninth Ave. Corp., 127 N.Y.S. 2d 258,

affd. 283 App. Div. 939), it is horn-

book law that courts, as a matter of

public policy, will not receive the

affidavits of jurors to impeach their

verdict. A fortiori the hearsay affi-

davits of plaintiffs' attorneys or

interested parties are insufficient

. _— Ae) Senpre gene eee ey

fe. PEE SR ER REESE FTG | ee ¥" . r

a y - Rs e = .

13a

Appendix B

to serve as the basis for the impeach-

ment of the jury's verdict (see People

Vv. DeLucia, 15 Ny 24 294, 296; Sindle

Vv. 761 Ninth Ave. Corp., supra; People

Vv. Sprague, 217 n.y. 373; Davis v.

Lorenzo's Inc., 258 App. Div. 933;

eee

Tartacower y. New York City Transit

Authority, 9 Misc 24 606).

The plaintiff's argument that the

verdict should be set aside because the

evidence preponderates in favor of the

Plaintiff is likewise without merit. aA

verdict for a defendant can be set aside

only if the evidence is so preponderate-

ly in plaintiff's favor that a jury

could not have reached its conclusion

on any fair interpretation of the

evidence (Indiere v. Strickroth, 32 A D

2d 957; Ladson v. NYCHA, 31 A D 24 611;

l4é4a

Appendix B

Knise v. fhearer, 30 A p 2d 741; Carino

ve Marino, 28 AD 24 514). ‘the evidence

herein involved Simple issues of cre-

Gibility and was such that a jury could

easily have reached its conclusion on

a fair interpretation of the conflicting

evidence. (It is pertinent to note that

this is the second trial of the issue

of liability ana in each trial a jury

returned a verdict in favor of the de-

fendant on the facts. The verdict in

the first trial was set aside for

errors in instructions to the jury.)

The plaintiffs'* case was vigorously and

ably presented to the jury by exper-

ienced trial counsel and it was the

perogative of the jury to reject the

plaintiffs’ version of the accident.

Plaintiff also urges that the

court was in error with respect to that

15a

Appendix B

part of its charge concernirg contribu-

tory negligence which related to the

question of proximate cause. It is

urged by the plaintiff that the court

did not adequately explain to the jury

that the contributory negligence of

the infant plaintiff could only defeat

& verdict if it was the proximate

cause of the accident. The record de-

monstrates that such claim is not --ar-

ranted. The court in its main charce

instructed the jury as follows:

too was under a duty to use reason-

able care. If she failed in that

duty and such failure was a* cause

of the accident then she was

guilty of contributory necligence.*

The court then went on to explain in

great detail how to apply the test of

reasonable care in the case of an infant

5-1/2 years of age. At the end of the

main charge, plaintiff's attorney

l6a

Appendix B

excepted to that Portion of the charae

on contributory nesligence which failed

to use the words “proximate Cause”.

The attorney stated: “The bald state-

ment. that contributory negligence of the

child would preclude recovery I believe

is inaccurate in that you failed to Say

that it must Still be the proximate

cause of the accident." This statement

by plaintiff's attorney did not reflect

the actual Charge of the court as indi-

cated above, but nevertheless the court

made this additional charce to the jury

as a result of Plaintiff's counsel's

exception and specific request:

"If the child faileg to exercise

reasonable care and such failure

was the proximate cause of the

accident then she is guilty of

contributory negligence."

No exception was taken to this addi-

tional charge.

The court's charge on proximate

17a

Arpendix B

cause was in accordance with the view-

point expressed in the recent case of

Ortiz v. Kinoshita ¢ Co. (30A D 2d 334,

336,337). It is to be noted that the

court scrupulously avoided using the

words “substantial factor" because it

is easily misunderstood by a jury, as

pointec out in the Ortiz decision. It

is stated in that decision that it is

important that a charte be reduced to

terms likely to be understood by the

jury. It is hard to conceive how the

wording in the main charge could be

made more simple and more easily under-

stood. It was for that reason that

the court did not use the word "proxi-

mate" in the main charge and only did

so in its supplemental charge at the

specific request of plaintiff's

attorney. In any event, a reading of

both the main charge and the supplemental

18a

Appendix B

charhe on this issue makes it clear

that the jury was correctly charged.

The motion is denied in all

respects.

* The stenographer's minutes inaccu-

rately uses the words "the cause"

instead of "a cause”,

Dated: August 27, 1970

EN OAD PE AS EE gene ee ge

a ee <n -

19a

APPENDIX C

At a Term of the Appellate

Division of the Supreme Court

of the State of New York, Second

Judicial Department,

held in Kings County on

February 16, 1971

HON. JAMES D. HOPKINS,

Acting Presiding Justice.

— ve

ROBIN DUGAN, an infant, by

DONALD DUGAN, her Guardian

ad Litem, and DONALD DUGAN ,

individually, Order on

;, Appeal

Petitioners, from

Order and

vs. Judgment

JACK DIEBER,

Respondent.

- SS

In the above entitled cause, the

above named Robin Dugan, etc., et )

plaintiffs, having appealed to this

court from a judgment of the Supreme

Court, Kings County, entered October

22, 1970 and from an order of the same

court dated October 7, 1970; and the

20a

Appendix C

Said appeal having been submitted by

Eileen Newmark, Esq., of counsel for

the appellant, and argued by Thomas

Grimes, Esq., of counsel for the

respondent, and due deliberation hav-

ing been had thereon; and upon this

court’s decision Slip heretofore filed

and made a part hereof, it is:

ORDERED that the judgment and

Order appealed from are hereby

unanimously affirmed, with one bill

Of costs.

Enter: HERMAN M. POGUL

Clerk of the

Appellate Division

| 2la

APPENDIX D

At a Term of the Appellate

Division of the Supreme Court

of the State of New York, Second

Judicial Department,

held in Kings County on

April 9, 197]

HON. JAMES D. HOPKINS,

Acting Presiding Justice.

—xX

ROBIN DUGAN, an infant, by

DONALD DUGAN, her Guardian

ad Litem, and DONALD DUGAN,

individuaily, Order on

Motion to

Reargue

Appeal or

on to Appeal

“ to the

Court of

JACK DIEBER, Appeals

Petitioners,

Respondent,

In the above entitled Cause, the

above named Robin Dugan, etc., et oo

appellants, having moved to reargue

the appeal or for leave to appeal to

the Court of Appeals; from an Order of

this court, dated February 16, 1971;

Now, upon the Papers filed in |

22a

Appendix D

support of said motion and the papers

filed in Opposition thereto; upon the

Papers on which the appeal was deter-

mined; ¢nd the motion having been duly

Submitted and due deliberation having

been had thereon, it is:

ORDERED that the motion is hereby

denied.

Enter: HERMAN M. POGUL

Clerk of the

Appellate Division

23a

APPENDIX E

STATE OF NEW YORK,

in Court of Appeals

At a Court of Appeals for the

State of New York, held at

Court of Appeals Hall in the

City of Albany on the Fifteenth »

day of April A.D.1971,

PRESENT, Hon. Stanley H. Fuld,

Chief Judge, presiding.

Mo. No, 334

Robin Dugan, an infant,

by Donald Dugan, her

guardian ad litem, ana

Donald Dugan, individ-

ually, Order

Dismissing

Appellants, . Appeal

vs.

Jack Dieber,

Respondent.

A motion having heretofore been

made herein upon the part of the res-

pondent to dismiss the appeal taken by

the appellants in the above cause to

ER et RE Pap here

eee

24a

Appendix E

this Court, Papers having Deen sub-

mitted thereon and, after having heard

Thomas Grimes, Esq., of counsel for

respondent. in Support of said motion |

and Eileen Bvene Newmark, Esq., of

counsel for appellants, in opposition

thereto, due deliberation having been

therevvon had,-it is

ORDERED, that the Said motion be

and the same hereby is granted and the

appeal dismissed, with costs and ten

dollars costs of motion, upon the

ground that no substantial constitution-

al question is Sirectly involved.

Deputy Clerk

Seal

25a

APPENDIX F

STATE OF NEW YORK,

in Court of Appeals

At a Court of Appeals for the

State of New York, held at

Court of Appeals Hall in the

City of Albany on the Seventh

day of July A.D.197],

PRESENT, Hon. Stanley H,. Fuld,

Chief Judge, presiding.

2 Mo. No. 523

Robin Dugan, an infant,

by Donald Dugan, her

Guardian ad Litem, and Order

Donald Dugan, Indi- Denying

vidually, Leave to

Appeal

Appellants,

vs.

Jack Dieber,

Respondent.

A motion for leave to appeal to the

Court of Appeals in the above cause

having heretofore been made upon the

Part of the appellants herein and papers

having been Submitted thereon and due

deliberation having been thereupon had,

Rt FE ete a a ee ee —

26a

Appendix F

it is

ORDERED, that the said motion be

and the same hereby is denied with ten

dollars costs and necessary printing

disbursements.

Deputy Clerk

Seal

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