250 F. 839 | 2d Cir. | 1918
(after stating the facts as above). This collision was not between vehicles approaching each other from opposite directions, but between a small automobile, which overtook and tried to pass a large truck drawn- by two horses and heavily loaded with milk, together with a few- cases of eggs and boxes of butter. At the point where the collision occurred there were two trolley tracks on the avenue. The automobile was on the right-hand track in the direction in which it was going, and the truck was on the left-hand track in the direction in which it was going, when the plaintiff discovered it. When the automobile was within 150 feet of the truck and running about- 10 or 12 miles an hour, the plaintiff sounded his horn to pass; but the driver of the truck, according to plaintiff’s testimony, did not appear to move either way in the road until the automobile got abreast of him, when he pulled his horses from the left track, upon which he was, to the right track, upon which the automobile was going, with the result that the car struck defendant’s right front wheel. The driver of the truck admits that he swung over to the right track, but denies that the car struck his wheel. He insists that it hit his hollow iron whiffletree and broke it. His testimony is that the car did not hit his horses, and that it traveled about 45 feet further ahead in front of the truck and horses, and then came to a full stop and turned three-quarters around. The
“Q. What {lid yon do when yon went to turn over into the outbound trackY A. Naturally I looked around to see if there was anything behind me. Q. Did you see anything'? A. I did not. * * * ”
And the following is from his cross-examination:
“Q. Had you turned around before the accident? A. Yes. Q. You saw the automobile coming? A. I did not see the automobile coming. Q. What did you see when you turned around? A. When I turned around I saw nothing; it was a plain road. Q. There was no automobile in sight? A. Nothing at all. Q. How long before the accident did you look around? A. I can’t say how long it was. Q. Was it a second, or a minute, or ten minutes? A. I can’t say. Q. You don’t know? A. X can’t say. Q. You don’t know whether it was 15 minutes then? A. I don’t know. Q. You had turned around before the accident? A. Yes; I had turned around before the accident. Q. Just, before the accident? A. Yes; before the accident. Q. ITow far had you gone in that time, a block or a few feet? A. I should say, I should imagine, about 4 or 5 feet."
The space between the extreme outside rails of the two tracks is paved with Belgian blocks, and on each side is a strip of asphalt, which on the morning in question was slippery. The two parties wanted to keep off the asphalt and on the tracks. That the driver of the truck was on the wrong side of the road when it swerved is admitted.
“There is, however, a law of the road, a right side and a wrong side of the road, as to all private vehicles established by universal usage.”
Atid the court goes on to refer to “the universal usage of all wagons to turn to the right.” Whether there is a common-law rule of the road in this country we need not inquire, for in most states, if not in all, the matter is regulated by statute. And the New York statute declares:
1. That whenever any persons traveling with any carriages meet on any highway they shall seasonably turn to the right of the center of the road.
2. That any carriage overtaking another shall pass on the left side of the overtaken carriage. And when requested to do so the driver of the overtaken carriage shall as soon as practicable turn to the right so as to allow the overtaking carriage free passage of his left.
2 Birdseye’s Cumming & Gilbert Consolidated Laws of N. Y. Ann. n. 2849, § 882.
In Peltier v. Bradley Dann & Carrington Co., 67 Conn. 42, 48, 34 Atl. 712, 32 L. R. A. 651, the Connecticut court declared that the statutory rule as to the law of the road is limited to vehicles for the. conveyance of passengers, and has no application to the driver of a. truck for the conveyance of goods. But in that state the statute pro
In taking the wrong side of the road the driver assumed the risk fof his experiment, and it was for him to use greater care than would have been required of him if he had kept on the right side. Where a collision occurs in such circumstances, the presumption is against him, and especially when the collision takes place in the dark. Angell v. Lewis, 20 R. I. 391, 393, 39 Atl. 521, 78 Am. St. Rep. 881; Shearman & Redfield on Neg. (6th Ed.) vol. 2, § 377, and volume 3, § 651. And persons who pass him have a right to presume that he will comply with the law of the road, and that no greater caution or skill will be required on their part than would be necessary if he were on his own side of the road. Wood v. Luscomb, 23 Wis. 287.
In Pluckwell v. Wilson, 5 Car. & Payne, 375, Mr. Justice Alderson charged the jury that a person driving a carriage is not bound to keep on the regular side of the road; but, if he does not, he must use more care and keep a better lookout to avoid collision than would be necessary if he were on the proper part of the road. In Adolph v. Central Park, etc., R. Co., 76 N. Y. 530, in an opinion written by Judge Eolger, it was laid down that a traveler upon a street or highway is not bound to give way for another, traveling in the same direction, who desires to go by him, if there be room on either hand for the other to pass without .way being given; that he is only bound to yield the way enough -for one behind him to pass, when it is practicable and he is requested so to do, and when, by keeping in his place, he will prevent the one desiring to drive faster from going by; that he is not bound, therefore, to look or to listen for the coming of another, so as to make clear the way for him. That case is. without application to the facts of this case. The driver of the truck did not cause the collision by keeping his place and direction, but by turning out of his course, if the plaintiff is believed, and going directly in front of the latter.
The trial judge properly instructed the jury that'the burden was on the plaintiff to prove by a preponderance of testimony that the injury was due to the negligence of the defendant as to some duty which the defendant owed to the plaintiff at the time, and also that the accident did not occur through any fault of the latter. The question of the negligence was a pure question of fact, on which the verdict of the jury is conclusive.
In the argument in this court the defendant complains that the trial court committed reversible error - in admitting testimony of a con-
It is so ordered.