128 N.Y.S. 429 | N.Y. App. Div. | 1911
Lead Opinion
On October 6, 1906, the American Automobile Association was conducting a speed contest upon certain specified highways in Nassau county in connection with a prize offered by William K. Vanderbilt, Jr., to be competed for by motor vehicles representing America and foreign countries. It was being conducted with the consent of the board of supervisors of said county. Defendant had entered a car in the said competition, which was operated by its employee. A part of the course was over a road which was fifty feet in width, known as the Jericho turnpike. The racing cars proceeded northerly along this road until they rea-ched another road intersecting it at right angles. Toward the right this road led to Huntington and toward the left to Roslyn. The western portion of this road which led toward Roslyn was seventy feet wide. At this point it was necessary to make a sharp turn from the Jericho turnpike into the Roslyn road. To the north of this road there was another road fifty feet wide extending toward Oyster Bay. The easterly and westerly lines thereof were a short distance to the west of the corresponding lines of the Jericho turnpike, so that the Oyster Bay road, although nearly so, was not exactly a continuation thereof. A vehicle coming north in the center of the Jericho .t.»wpike could pass into and along the Oyster Bay road without at all altering its course. During the progress of the race and. toward the close thereof, the car entered by defendant and operated by its employee in attempting to make this sharp turn was deflected
There is a conflict of evidence as to the exact place of the accident and whether defendant’s car left the course at all, as to the manner of the happening thereof and whether the car “skidded” and deflected from its course or came into collision with plaintiff because he with others had crowded over the line of the highway in their anxiety to obtain a good view of the contest. There is evidence, however, which the jury have accepted as credible from which negligence in the operation of the car could be found. Assuming this, we think that plaintiff has failed upon the other branch of the case. His testimony is somewhat conflicting, but taking that view thereof most favorable to him, we think that his contributory negligence is'affirmatively established.
At the time of the accident he was between fifteen and sixteen years of age. He resided in Horwalk, Conn., and came to the scene of the accident with his father and other relatives the night before the race was to take place for the express purpose of being a spectator thereof. He was somewhat familiar with the use of automobiles and knew the tendency of cars going round a curve at a high rate of speed to “ skid ” or deflect from the course. He had observed during the progress of the race that every car as it passed round this curve had “ skidded” more or less and had turned tip the road, and he estimated that he had seen this happen during this particular race about a hundred times. When he arrived at the course he selected as his point of observation a position on a horse block on the northeast corner of the road to Oyster Bay and the Boslyn and Huntington road. From the fact that the easterly line of the Oyster Bay road was a little to the west of the corresponding line of the Jericho turnpike, this was doubtless a most desirable place from which to witness the contest, since the spectator looking south could see the cars approaching for a long distance down the turnpike and could also witness the skill of the operators in making the sharp turn into the Boslyn road. But it was also one of the most dangerous positions in case a car
Plaintiff’s evidence was contradictory as to the distance, that he was north of a line in continuation of the northerly line of the Roslyn road at the moment when he was struck. In his bill of particulars he states the distance to be from six to ten feet; in his testimony he places it at twenty feet. There were other people standing in the road. At one time in giving his evidence he stated that he saw the flags waving and started to go out so that he could see the car, and passed two or three lines of people in getting up nearer the front of the crowd. At another time he stated that he was crossing the Oyster Bay road very nearly in the center of the crowd standing within the lines thereof, but that the crowd parted when it saw the car coming, so that at the time of the accident he was on the edge thereof. Whatever his exact position may have been, according to his own testimony he deliberately went into a place of known danger, in the imminent presence thereof, and without exercising the slightest precaution, when there was no necessity for him to do so unless it was to gratify his curiosity in observing
The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.
Cabe and Rich, JJ., concurred j Woodward, J., read for affirmance, with whom Hirschberg, J., concurred.
Dissenting Opinion
I dissent from the opinion of Mr. Justice Burr, for it seems to me that, unless we are to hold that the most unfavorable view which the jury might have taken of the evidence is to be deemed established in spite of the verdict in favor of the plaintiff, there is no ground for a reversal of this judgment. On the 6th day of October, 1906, the plaintiff, then about fourteen years of age, came from Norwalk, Conn., with his father, uncle and other relatives, to witness the automobile race, commonly known as the Vanderbilt Cup Races, at Long Island, and took up a position at or near the junction of the highways known as the Oyster Bay road, Jericho turnpike and East Norwich road. The board of supervisors of Nassau county had, by resolution, set apart certain highways for the purposes of these contests, among them being the Jericho road and the Roslyn road (so called), the former road running generally north and south and the latter ■ east and west. These roads crossed at right angles at East Norwich Corners, and as the races in question were conducted the cars came from the south, running north, turning at right angles to the west into the Roslyn road at the point of intersection. The Jericho road continues north from East Norwich Corners, with a deflection, and is known from that point as Oyster Bay road, and several other roads converge at or near East Norwich Corners. The Oyster Bay road was not included in the roads set apart for these races; it was open to general use as a highway, and the plaintiff’s theory of the case, which has been accepted as the true one by the jury, and which is amply supported by the evidence, is that he had, after witnessing several events, gone with his brother and some cousins to a tire-repairing shop a short distance away,
But it is said this boy was familiar with automobiles; that he . knew of the danger of the cars skidding in making tarns under high speed, and this may all be conceded, but there is no evidence in this case that the defendant’s car skidded, or that the accident was due to skidding. The evidence is that the car, instead of making the turn, which might have involved skidding, went nearly straight
I have examined the other questions in the case, and I am persuaded that there are no errors calling for a reversal of this judgment. Taking the plaintiff’s version of the facts, and they are by far the best supported in the evidence, the plaintiff conducted himself with that degree of prudence which might fairly be expected, not only of a boy of his years, but of an ordinarily prudent man. He was where he had a perfect lawful right to be; he had a right to be where he was whether the races were going on or not. If he had come along there incidentally as an ordinary traveler he would have been perfectly within his rights at the point where the accident occurred, as shown by the great weight of evidence, and the suggestion by the appellant that he was not invited there ii> little short of an impertinence. He had absolutely nothing to fear -from the defendant’s automobile so long as it was confined to the course which was set apart for its special use in racing, and as against any one lawfully in Oyster Bay road the defendant was bound to so operate its machine as not to invade that highway at racing speed, or in disregard of the rights of those who were there. It is not seriously questioned that the defendant negligently operated the
The judgment and order appealed from should be affirmed, with costs.
Hirschberg, J., concurred.
Judgment and order reversed on reargument, and new trial granted, costs to abide the event.