218 A.D. 198 | N.Y. App. Div. | 1926
On September 19, 1925, in the daytime, the plaintiff, appellant, was on his premises on the easterly side of Railroad street just north of Main street in the village of Parish, N. Y. Respondent was driving a Ford sedan westerly on Main street, and one Fogg was driving a truck northerly on Railroad street. There was credible testimony that respondent was driving at a high rate of speed; that the two automobiles reached the street intersection at about the same time; that the respondent’s sedan slid along the pavement from thirty-six to sixty feet immedi
Under the indicated testimony the appellant did not as a matter of law fail to establish negligence in respondent. Furthermore, the “ right of way rule ” (Gen. Highway Traffic Law, § 12, subd. 4) did not require a nonsuit by fastening all possible responsibility upon Fogg, the driver of the north-bound truck; for, under the testimony, Fogg (unlike the plaintiff in Shirley v. Larkin Co., 239 N. Y. 94) was not as a matter of law placed in a position where he was bound to avoid a collision by slowing down or stopping his truck. Whether or not respondent was negligent and his negligence at least a partial, proximate cause of appellant’s being injured, were jury questions. (Hancock v. Steber, 208 App. Div. 455; Ward v. Clark, 232 N. Y. 195.)
The judgment should be reversed on the law and a new trial granted, with costs to appellant to abide the event.
All concur. Present — Hubbs, P. J., Clark, Sears and Taylor, JJ.
Judgment reversed on the law and new trial granted, with costs to appellant to abide the event.