22 A.D. 393 | N.Y. App. Div. | 1897
The action was brought to recover damages for injuries received by the plaintiff while driving on Ocean parkway in Brooklyn, by reason of á collision between the defendant’s coupé and the plaintiff’s wagon, on the afternoon of January 2, 1896. The Ocean parkway is a broad thoroughfare running from the park entrance to-Coney Island. The defendant’s coupé was proceeding at slow speed on the right-hand side of the road toward the beach. The driver, intending to return to the park, began to turn "his wagon to the left, out into the roadway, when it was run into by the plaintiff, who was speeding his horse down the road in the same direction that the defendant’s coupé was going. The vehicles came into collision, the plaintiff’s wagon was upset, and he was thrown out and received serious injury. The jury rendered a verdict for the plaintiff, a motion was made for a new trial and the same was denied. From the judgment entered on this verdict the defendant appeals.
It' is unnecessary to state any other facts, as the decision of this appeal will turn upon the charge of the learned court below. It charged: “ It was the duty of the (defendant’s) driver, when he undertook to change his course, to see to it he did it in such a way that he would not come in collision with vehicles behind him.”
The exception to the charge raises a question as to the rights and duties of drivers of vehicles on the public highway where the one is overtaking the other. We think it is clear that the learned court was in error in charging as matter of law that the defendant was bound “ to see to it ” that he turned in such a way that he would not come into collision with overtaking vehicles. A person driving upon a public highway in advance of another vehicle is not bound
The judgment must be reversed and a new trial granted.
All concurred.
Judgment and order reversed and new trial granted, costs to abide the event.