Miner v. Rembt

178 A.D. 173 | N.Y. App. Div. | 1917

Putnam, J.:

The plaintiff’s proposition comes to this: That in pursuit of a speeding car, this motorcycle can run at night at a speed of thirty-five miles an hour, and strike a converging truck at an acute angle from behind, and recover damages for such resulting injury. The warning rests wholly on the cyclist’s horn, given sideways to a track on a converging street, where a board fence eleven feet six inches high shuts off the plaintiff until the cycle is 100 feet off the track’s path.

No private motorcyclist could make such a claim. But motorcyclist officers assert an immunity under city ordinances. The ordinance makes a speed to exceed fifteen miles an hour prima facie prohibited speed. But by section 4 it is declared that this ordinance shall not apply to members of the police department when in performance of their duty. (Speed Ord. Apr. 15, 1913, §§ 1, 4, as amd. See Cosby’s Code Ord. [Anno.' 1914] pp. 455-457, 475, 476.)

A police officer engaged in pursuit of a fugitive car still has to use ordinary care. Can he dash along a thoroughfare at such a junction as this, and flash up behind a track at a conceded speed of over fifty feet a second? Reckoning back from the impact only ten seconds would put plaintiff off as far as Tesla place, a block beyond Edison place. A horn sounded in the block between Edison place and the corner would be less than four seconds before the blow. While plaintiff was hurt while in the discharge of official duty, that duty did not authorize him to ignore the rights of overtaken vehicles at such a crowded street junction. The motorcycle had no brake; its dangerous approach was masked by the fence along the north side of Myrtle avenue. The present judgment reverses the true legal liabilities, since plaintiff was reckless, ignoring defendant’s rights at such intersection. Defendant was not at fault. He had no reason to suppose he would meet such disregard of his rights. The cycle horn, given at the time stated, imported no such warning. When defendant saw the plaintiff, they were already in extremis.

I advise to reverse as against the weight of evidence, and to direct final judgment dismissing the complaint, with costs in the court below and on this appeal.

Jenks, P. J., Stapleton, Mills and Blackmar, JJ., concurred.

Judgment reversed and final judgment unanimously directed dismissing the complaint, with costs in the court below and on this appeal.