Jacobs v. Richard Carvel Co.

159 N.Y.S. 196 | N.Y. App. Term. | 1916

Cohalan, J.

Action to recover damages for the loss of a horse and for repairs to a wagon. On February 9, 1915, plaintiff’s horse and wagon in charge of a driver were proceeding easterly on One Hundred and Thirty-eighth street in the borough of The Bronx. When the driver reached a point near the intersection of Brook avenue and One Hundred and Thirty-eighth street, there was a collision between the horse and wagon and a motor truck owned by the defendant, which had turned into One Hundred and Thirty-eighth street diagonally in a northwesterly direction. In consequence of the collision the horse received injuries which necessitated its being shot. The left shaft of the wagon was broken and the harness partially destroyed.

The question involved in the action was whether the defendant’s truck ran into the plaintiffs’ horse, or whether the plaintiffs’ horse ran into the defendant’s truck, and the issue was decided by the jury in favor of the defendant.

On the trial a certified copy of chapter 24, section 11, of the city traffic regulations was received in evidence. These regulations require that a vehicle turning to the left into another street shall pass to the right of and beyond the center of the street intersection before turning. The evidence in the case was that the truck was proceeding northerly on the left or the wrong side of the street, and had made the turn before it had reached the center of One Hundred and Thirty-eighth street. The court had said nothing declaratory of the traffic regulations in evidence, and at the close of the charge this request was made and refused: “ I ask the court to charge the jury, that if they find that the course taken by the defendant chauffeur as testified to by him was the wrong course, that the defendant was guilty of negligence, and that the plaintiff is not guilty of negligence contributing thereto, that is, the course taken as specified to by the chauffeur.”

While the latter part of this request may not be clear, yet the plaintiffs were entitled to have the first portion thereof stated to the jury. This was import-, ant, too, in view of the fact that the court, in its discretion, refused to allow the jury to take the copy of the traffic regulations to the jury room. The course taken by the defendant’s chauffeur in driving on the Wrong side of Brook avenue and taking a short turn into One Hundred and Thirty-eighth street was an element of importance for the jury to consider as bearing on the defendant’s negligence. In fact, this court has already so held in this case. Jacobs v. Carvel Co., 156 N. Y. Supp. 766.

It might be that the reckless driving on the part of the driver contributed to the accident, and that that action was sufficient to overcome the mere fact that the chauffeur was violating a city ordinance, but the jury was entitled to an instruction to that effect.

Bijub, J., concurs in the result; G-tjy, J., dissents.

Judgment reversed, new trial ordered, with thirty dollars costs to appellant to abide event.