Wohlenberg v. Malcewicz

PETERS, P. J.

Plaintiffs, who are husband and wife, brought this action to recover from defendants damages for personal injuries received by Mrs. Wohlenberg in an automobile accident alleged to have been caused by the negligence of defendants. The cause was tried before the court without a jury, and resulted in a judgment for defendants. From that judgment plaintiffs prosecute this appeal.

The injuries arose out of a three-car collision that occurred on the Bayshore Highway shortly after 5 p. m. on August 8, 1940. Mrs. Wohlenberg was riding in the back seat of an automobile being driven by Mrs. Berkes. The other two cars were being driven by defendant Betsy Adams and defendant Frank Malcewicz. The three automobiles were all proceeding in a southerly direction on the highway, and traffic was quite heavy. The highway is a main arterial, and has two lanes for traffic proceeding southerly. All three cars were in the inside, or fast lane. The Adams’ car was first in line, followed by the Berkes’ car and the Malcewicz’ car brought up the rear. Betsy Adams testified that she was traveling at forty to forty-five miles per hour when a truck, some distance ahead, pulled out of .the slow lane into the fast lane. This caused all the cars behind the truck to slow down. She stated that as a result she was forced to slow down very quickly. She was following another car at about a distance of one ear length. She admitted that she gave no hand signal to the cars following her, but she testified that her car was equipped with the usual red “stop” light operated by the brake pedal. When her ear had almost come to a stop, the Berkes’ car ran into the Adams’ ear, and then hit it a second time.

Maleewiez testified that he was driving some twenty to twenty-five feet behind the Berkes’ car at a speed of about twenty-five to thirty miles per hour; that he was driving a new Packard which was in perfect working condition; that the Berkes’ ear stopped very quickly; that it ran into the Adams’ car and he crashed into the Berkes’ car as the impact from the crash between that ear and the Adams car threw

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the Berkes’ ear backward. The force of the impact with the Malcewicz’ car forced the Berkes’ car to again hit the Adams’ car. That corroborates the testimony of Betsy Adams that her car was hit twice by the Berkes’ car. That testimony was also corroborated by La Yonne Olds, a passenger in the Adams’ car.