147 N.Y.S. 761 | N.Y. App. Div. | 1914
Lead Opinion
The only serious' question involved in this appeal is whether the finding by the jury that the plaintiff was free from contributory negligence was against the weight of evidence. On the afternoon of June 30, 1910, the plaintiff was driving a heavy thirty to thirty-five horse power Darracq car in which were seated five other persons, from Liberty on his way westerly to White Sulphur Springs, Sullivan county, N. Y. Soon after leaving Liberty and while plaintiff was passing westerly along a public highway, defendant’s team, driven by defendant’s servant, attached to a heavy lumber wagon, drove out of a lane upon the northerly side of the highway and stopped diagonally crosswise of the highway with the hind wheels in the north
All concurred, except Smith, P. J., dissenting in opinion, in which Kellogg, J., concurred.
Dissenting Opinion
(dissenting):
If an automobile were approaching a railroad crossing, over which was passing a train of cars, at the rate of twenty miles an hour, and without stopping its speed should run into that train, all would agree that the chauffeur was guilty of contributory negligence. If in his reckoning the train had just passed over so that he crossed safely it would still be reckless driving. It is just such driving that makes the automobile almost a public nuisance to all who have occasion to use the
The failure to bring the clutch back to neutral did not in any way affect the driving of the car before the car came to the obstruction. It was only after the chauffeur found himself compelled to dodge around the wagon and in so doing was thrown from his seat, that the failure to get the clutch back to neutral had any effect. In cars with the transmission which this car had there is always a pedal to remove the power from the car so that the brake may be applied effectively. In my judgment the judgment and order should be reversed on account of contributory negligence of the chauffeur.
Kellogg, J., concurred.
Judgment and order affirmed, with costs.