Logan v. Esterly

¶1Although I agree with the majority that a remand is required here on the issue of apportionment of liability between defendants Esterly and Gull Contracting Co., Inc. — Mac Asphalt Construction Corp. (Kelly v. Long Is. Light. Co., 31 N Y 2d 25, 29), I would reverse the interlocutory judgment and grant a new trial upon the ground that the trial court erred in refusing to charge, as requested1, on the *652relationship and duties of the plaintiffs who were licensed drivers, and of the defendant, Charles Esterly, who was driving with a learner’s permit.

¶2Section 501 (suhd. 4, par. b) of the Vehicle and Traffic Law in effect at the time2, provided that “ [t]he holder of a learner’s permit shall not operate or drive a motor vehicle unless at all times under the immediate supervision and control of a driver at least eighteen years of age duly licensed. ” (Emphasis supplied.) Although it should be abundantly clear that public safety requires the supervision and control of learner-drivers in their operation of a motor vehicle by a licensed driver, nowhere in the charge did the court refer to this section and the respective duties and obligations placed upon a licensed driver accompanying the learner-driver. Throughout the court’s charge, the plaintiffs were referred to as ordinary passengers. *653At no time did the court mention that passengers, such as the plaintiffs, who accompany a driver who has a learner’s permit to operate a motor vehicle, assume the risk of such driver’s inexperience. (Spellman v. Spellman, 309 N. Y. 663.) Certainly the court should have explained to the jury the relationship between the plaintiffs, as ¡licensed drivers, and the defendant, as a learner-driver. Nor can it be said that the court inadvertently omitted instructions on this crucial issue since five specific requests to charge were made on this point and declined by the court.

¶3Accordingly, I would reverse the order of the Appellate Division and remit the action to the Supreme Court for a new trial.

¶4Judges Gabrielli, Jones, Wachtler and Stevens concur in memorandum; Judge Jasen dissents and votes to reverse in an opinion in which Chief Judge Breitel concurs; Judge Babin taking no part.

¶5Judgment modified by directing a trial of the issue of apportionment of liability between defendants Esterly and Gull Contracting Co., Inc.— MacAsphalt Construction Corp., or other proceedings in accordance with the memorandum herein, and, as so modified, affirmed, with one bill of costs to plaintiffs-respondents against defendants-appellants.