181 N.E. 67 | NY | 1932
The main drive of Ocean parkway, running south from Brooklyn to Coney Island, is sixty feet wide with a white dividing line in the center. A taxicab, with plaintiff's intestate as a passenger, was driving south. The defendant Pierson was driving north. Both cars were near the white line. To avoid running into a car ahead which suddenly stopped, the taxicab pulled *114 to the left across the white line and collided with the Pierson car. Plaintiff sued and had judgment against both the taxicab company and Pierson.
A traffic regulation of the Police Department of New York city, in force at the time of the accident, provided as follows: "11-a. A moving vehicle shall keep as near as practicable to the right hand curb so that faster moving traffic may pass on the left."
At the request of plaintiff the trial court read that regulation and told the jury in substance that its violation by either of the drivers would be evidence of negligence which could be taken into consideration with all the other evidence as bearing on the issue of negligence, "provided you also find that there was a causal connection between the violation of the regulation and Callahan's injury."
Under an exception to that charge the judgment against Pierson was reversed. On the authority of Cohen v. Goodman Sons,Inc. (
The issue of causation under the charge involved merely the question of whether the defendant Pierson's violation of the regulation was a factor in the result. Under the evidence, that question was for the jury. In Cohen v. Goodman Sons, Inc. (supra) the same question under a similar regulation arose. It was entirely clear upon the facts there that the antecedent violation of the ordinance had nothing to do with the accident. Plaintiff attempted to cross a street in front of an oncoming truck in plain view. Under such circumstances whether the truck was near the curb where the ordinance required it to be, or was in the middle of the street, was immaterial.
The order of the Appellate Division should be reversed and the judgment of the Trial Term affirmed, with costs in this court and in the Appellate Division.
POUND, Ch. J., CRANE, O'BRIEN and HUBBS, JJ., concur; LEHMAN, J., dissents; KELLOGG, J., not sitting.
Ordered accordingly.