18 N.E.2d 628 | NY | 1939
The accident out of which this action arose happened between 5:30 and 6:00 P.M. on December 31, 1936, at the intersection between Old Country road and School street in Westbury, Nassau county, when defendant's truck, partly loaded, and moving along Old Country road in a westerly direction crashed into the right side of a Plymouth sedan which was driven by plaintiff's intestate in a northerly direction out of School street. The truck drove the passenger car forward *383 and finally came to rest, bottom side up, on top of the small car, near the fence on the northerly side of Old Country road and some eighty feet or more westerly of the point of collision. The Plymouth car was demolished and plaintiff's intestate received injuries from which he died on the following day. The truck was badly wrecked. The jury rendered a verdict for the plaintiff but the judgment entered thereon was set aside by the Appellate Division, as matter of law, and the complaint was dismissed.
Counsel for respondent strenuously urges that the only inference possible from the testimony of Frykberg, the driver of the truck, coupled with the evidence of existing conditions is that deceased "disobeyed the statutory requirements or rules governing the right of way and also the admonition of the concededly existent traffic stop sign and heedlessly and recklessly drove into the intersection immediately into the path of defendant's oncoming truck" and was, therefore, guilty of contributory negligence as matter of law. The Appellate Division so decided.
The burden of establishing contributory negligence on the part of the plaintiff's intestate rested upon the defendant (Decedent Estate Law (Cons. Laws, ch. 13), § 131). It does not follow that evidence produced only by defendant may be available to it in meeting that burden. The defendant could take advantage of any evidence in the case, by whomsoever produced, to establish that defense (Fitzpatrick v. International Ry. Co.,
Frykberg, the driver of the truck, was the only occupant of the truck and the only eyewitness to the accident. He was examined on two different occasions before trial and he also testified at official investigations of the accident. Upon the trial, plaintiff read his testimony taken on the examinations before trial in which he testified to facts necessary to plaintiff's case. After plaintiff rested her case, defendant called him to the stand and he testified to facts designed to absolve himself from blame for the accident. No one was available to contradict some of his statements. He was still in defendant's employ at the time of the trial. On material points, his testimony on direct and cross-examination at the trial was contradictory and statements made on the various occasions on which he was examined were contradictory to and inconsistent with each other. He was an interested witness. His credibility, the reconciliation of his conflicting statements, a determination of which should be accepted and which rejected, and the truthfulness and accuracy of his testimony, whether contradicted or not, were exclusively for the jury, the trier of the facts (McDonald v. MetropolitanStreet Ry. Co.,
Frykberg said he was unable to give any estimate of the speed of the Plymouth car. He said that when he was about twenty feet from the intersection driving at twenty-five miles per hour, he glanced to the left and saw decedent's car approaching and that the headlights were burning. He said the Plymouth car was then twenty feet south of the dirt shoulder on the south side of Old Country road, again that it was forty-five feet away, again that it traveled only five feet from the time he first saw it until he struck it, and he later changed this to forty-five feet. Which statement was to be taken as *385 true? The distance from the south edge of the dirt shoulder to the point of collision was approximately thirty feet. Deceased then travelled either five feet or fifty feet or seventy-five feet while Frykberg was travelling twenty feet, according to which statement of the witness, if either, is to be taken as true. The jury were entitled to disregard the testimony entirely. There was nothing else upon which any inference could be drawn concerning the speed of the sedan as it approached the point of collision. Frykberg said that he (Frykberg) gave no signal of his approach to the intersection until about twenty feet therefrom or, again, until an instant before the collision when he saw the Plymouth sedan immediately in front of him. A nearby resident heard no signal. Frykberg gave no testimony that he saw what the deceased was doing or that he saw him at all. He testified merely that the car was moving as above indicated and that it passed through the intersection in front of him.
It appeared that there was a sign on the side of School street twenty feet south of Old Country road directing operators of moving vehicles to stop for through traffic. The sign did not contain the words "full stop." At no point in Frykberg's testimony did he say, nor is there any other evidence from which any inference may be drawn, that the car of deceased did not stop at or before it reached the traffic sign. In the absence of such evidence, the jury might infer that he did stop since he was presumed to obey the directions if he saw the sign or knew of its presence and of the presence of traffic. There is no evidence in the case that failure to stop, if there was any such failure, was in violation of any ordinance since no ordinance was proven nor did it appear by what authority the sign was erected. If presumed to have been erected by the State Traffic Commission (Vehicle
Traffic Law, § 95-d [Cons. Laws, ch. 71]; Meadows v. Lewis,
There is no evidence warranting any conclusion as matter of law that the deceased was violating paragraph 4 of section 82 of the Vehicle and Traffic Law, which required him to grant the right of way to defendant's truck. In construing the requirement of that provision the court charged, without exception: "If the vehicles are so near the intersection as they approach each other that there is a chance of their coming together if they continue at the same rate of speed, then the law gives precedence to the vehicle approaching from the right of the other and the law says that the vehicle approaching from the left must stop, or slow down, so as to give the right of way to the vehicle coming from the right." Such was the law of the case and the proper rule as laid down by this court (Shuman v. Hall,
We conclude there were no facts or circumstances in the case from which it could be said as a matter of law that the deceased violated any controlling law or ordinance or failed to exercise that care and prudence which was required of an ordinarily prudent man under the circumstances. The question of the negligence of deceased as a contributing cause of the accident was for the jury and not for the court.
The evidence presented a question of fact for the jury as to whether the driver of the truck was negligent and whether his negligence was the sole proximate cause of the accident. Beyond what we have already said, we think it unnecessary further to analyze that evidence. Suffice it to say that from the oral evidence and from the physical situation and the surrounding facts and circumstances, there was ample basis for the jury to find that the operator of the truck approached and entered the intersection at a speed far in excess of twenty-five miles per hour, without warning and in a negligent and reckless manner, and without consideration of the conditions then obtaining, and that his failure to exercise the care and prudence required under the circumstances was the sole proximate cause of the accident. The court advised the jury as to the rates of speed permissible under the Vehicle and Traffic Law and charged, without exception, that if it were found that the truck was being operated at a greater speed than those specified the jury *389 might take that into consideration and infer negligent driving on the part of the operator, having in mind the conditions which obtained at the time and place of the accident. Although the driver of the truck had the right of way under the Vehicle and Traffic Law, that gave him no authority to operate his truck carelessly and negligently and without consideration of the circumstances and conditions existing at the time (Shuman v.Hall, supra).
The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division.
CRANE, Ch. J., LEHMAN, O'BRIEN, LOUGHRAN and FINCH, JJ., concur; HUBBS, J., taking no part.
Judgment accordingly.