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• Title: Martin E. Eisenberg v. John Green
• Author : Supreme Court of New York
• Release Date : January 11, 1969
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 62 KB

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[33 A.D.2d 756 Page 756] The infant plaintiffs-respondents, passengers in a vehicle owned by defendant-appellant, were injured when the automobile
left an unlighted narrow and winding country road at a sharp curve on a drizzly and misty night. According to their testimony,
they had left the camp, where one was employed and the other a visitor, at about 10:30 p.m. and, between that time and about
or shortly after midnight went with the driver and two other male companions to two local bars, where each person had one
drink. The libation consumed by the driver is known classically as a "boilermaker" (see Webster's Third New International
Dictionary [Merriam], p. 247, definition 2). After midnight, they went to a diner and had some food, beginning the short trip
back at about 1:00 a.m. The evidence was to the effect that, though just before the accident he had been asked to slow down
a little, the driver had operated the vehicle safely, carefully and prudently, never exceeding fifteen or twenty miles an
hour. Nothing in the description of operation of the vehicle provides a basis for inference that the driver suffered from
any impairment. Notwithstanding, the Trial Justice instructed the jury that "a passenger who was aware that such drinking
of the driver deprives him of reasonable control of the automobile and who fails to protect himself from harm, is guilty of
contributory negligence." A verdict for defendant followed. Though it would have been eminently correct in appropriate circumstances,
the charge was improper, as the Justice himself realized on overnight reflection, for he then made the order which we now
affirm. The Trial Justice's change of mind was occasioned by a reading of Burnell v. La Fountain (6 A.D.2d 586) which is,
we believe, misapprehended in the dissent. In Burnell, though "the plaintiff denied either drinking herself or that she saw
the defendant drink", there was at the least sharply conflicting testimony to the contrary that both passenger and driver
drank together. Regardless of which version of that episode was accepted in that case, that evidence was not regarded as of
prime importance or relevance. "There are many instances where a driver drinks a little with no visible effect; or where he
drinks a little more and retains full control of himself and his vehicle; or where he drinks more or less, and the passenger
is unaware either of the drinking or of any relaxation of caution until an accident occurs. In such cases, absent some negligence
of the passenger in the operational occurrence of the accident itself, a finding of contributory negligence [33 A.D.2d 756
Page 757]

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