189 A.D. 795 | N.Y. App. Div. | 1919
The evidence presents two conflicting stories of the accident, which were submitted to the jury by the learned trial justice in a charge which correctly states the law, and the verdict establishes the facts in the defendant’s favor. The plaintiff, a battalion chief in the fire department of the city of New York, in the performance of his duty was on his way to a fire. He was riding in the front seat of a fire department automobile, seated beside one of his subordinates, a fireman regularly detailed as a driver. The automobile was proceeding easterly along Decatur street, in Brooklyn, which is intersected by Lewis avenue running north and south. At or near the intersection of the two streets, the automobile in which plaintiff was seated, collided with a large automobile fire truck of the defendant proceeding to the same fire in answer to the same alarm which had summoned the plaintiff. The collision occurred about half-past seven o’clock in the morning. The fire alarm came from a box at the corner of Jefferson and Stuyvesant avenues. Both vehicles were endeavoring to reach the alarm box, the plaintiff proceeding east on Decatur street to Stuyvesant avenue, one block away, at which point he would turn to the north, five blocks to Jefferson avenue, and the defendant’s truck north on Lewis avenue to Jefferson avenue, at which point it would turn one block east to Stuyvesant
The learned trial judge told the jury that when an alarm of fire is sent out it is of the greatest importance that it be answered with celerity for the protection of life and limb and property and the preservation thereof, and that it was the right, if not the duty of the two vehicles, to answer such alarm With the greatest practicable speed; that the city ordinances limiting the speed of vehicles did not bind plaintiff or defendant. But the learned judge told the jury that plaintiff and defendant were bound to exercise reasonable care, reasonable control, to be on the alert, on the lookout and to be observant of the rights of others who had the right to be upon the streets. He said the obligation was the same as to each motor vehicle. Both vehicles had a right to go upon the street. It was their duty to answer the call, but they were bound to exercise the care and caution which reasonably prudent men would exercise under similar circumstances. This was the law of the case as laid down by the trial judge, and no exception was taken to the charge in this particular. Whether the plaintiff or the defendant’s representatives, in charge of the motor truck fulfilled this duty was entirely a question of fact. The trial judge told the jury that the plaintiff must prove that he was free from fault; that it was conceded that he was in the automobile with a driver sitting on the same seat with him and in control of the vehicle. The learned counsel for plaintiff excepted to the statement of the court that it was conceded
When we examine the evidence of the plaintiff and his witnesses, and the evidence of those in charge of the defendant’s fire truck, we find that both parties admit their desire to reach the fire as soon as possible. There is evidence that the alarm bell was ringing on plaintiff’s automobile, and a similar bell on defendant’s truck, and that the siren whistle on the latter vehicle had been sounded several times. Neither the plaintiff nor his fireman chauffeur, or the captain of defendant’s truck and his men, heard any signal save their own. This is not surprising. When we come down to the time when the motor
The judgment and order are affirmed, with costs.
Present — Jenks, P. J., Putnam, Blackmar, Kelly and Jaycox, JJ.
Judgment and order unanimously affirmed, with costs.