275 N.Y. 281 | NY | 1937
The plaintiffs, husband and wife, were riding in an automobile driven by their son along Rocky Hill road in Queens county, New York, on December 8, 1934, when the car was struck by the defendant's auto coming in the opposite direction. The son was turning to his left into Two Hundred and Twenty-second street when the defendant's car was 400 or 500 feet away, according to the plaintiffs' testimony.
Subdivision 4 of section 82 of the Vehicle and Traffic Law (Cons. Laws, ch. 71) provides in part that "Every driver of a vehicle approaching an intersection shall grant the right of way at such intersection to any vehicle approaching from his right, * * *." The County Judge, without referring in terms to this statute, charged the jury that the defendant had the right of way. So, also, article II, section 6, of Traffic Regulations promulgated by the Police Department. Irrespective of any such regulations, one turning across traffic must use care commensurate with the situation and look out for approaching cars, but he is not obliged to wait until every one in sight has passed. Others must also show consideration and use like care not to hit the turning car. The relative rights depend upon distance and speed. The judge, we think, made these cautionary rules sufficiently plain to the jury. *283
A passenger may recover for injuries received in a collision between two automobiles even though both drivers were at fault. (Michelson v. Stuhlman,
"I ask your Honor to charge the jury that even though the negligence of the driver of the automobile in which the plaintiffs were riding contributed to the injury, the plaintiffs may still recover if the jury finds the negligence of the defendant was also a direct and proximate cause of the injury sustained by the plaintiff.
"The Court: I have already so charged."
At the very beginning of his charge the judge said: "It is true that any negligence on the part of the driver of the car, the plaintiffs being passengers, is commonly what we call contributory negligence in this case but does not bar a recovery; but you must find from the evidence that it was the negligence of the defendant that was the proximate cause of the accident."
The judgment should be affirmed, with costs.
LEHMAN, HUBBS, LOUGHRAN, FINCH and RIPPEY, JJ., concur; O'BRIEN, J., taking no part.
Judgment affirmed. *284