219 A.D. 75 | N.Y. App. Div. | 1926
The question on this appeal involves the application of the “ right of way ” provision of the General Highway Traffic Law. “ Every driver of a vehicle approaching the intersection of a street or public road shall grant the right of way at such intersection to any vehicle approaching from his right.” (Gen. Highway Traffic Law, § 12, subd. 4.) Accepting the proofs on behalf of plaintiff most favorable to her, we find the decedent, at about seven-forty A. m., driving a touring car in which were seated three other men, proceeding westerly on the Maybrook-Campbell Hall road at a speed of about twenty-five miles an hour which was reduced to about twenty or twenty-two miles an hour as the car approached the Neeleytown road, and further reduced as the latter road was reached to about eighteen miles; that on approaching the Neeleytown road the decedent blew his horn; that the brush and grass on the right-hand side of the MaybrookCampbell Hall road was of such height that a vehicle could not be seen on the Neeleytown road until the corner or point was reached which opened up that road to view; that when the point of clearance was reached, the car of the defendants was seen approaching thirty feet away from this Maybrook-Campbell Hall road; that the decedent- then accelerated the speed of his car, and at the same time “ swerved ” to the left, and when “ almost across this Neeleytown road,” the defendants’ car ran into the right-hand side of the decedent’s car at that part of it where the rear mudguard was
It is the contention of the plaintiff that her intestate’s right of passage over the intersection was not subordinate to the rights of the defendants to come along out of the Neeley town road and into the Maybrook-Campbell Hall road, and that the impact of the defendants’ car against the intestate’s car was of such severity as to import negligence upon the part of the defendants, and that whether, in the circumstances, the intestate was himself at fault which contributed to bring about the happening of the accident, was a question of fact which has been resolved in plaintiff’s favor. The plaintiff’s theory seems to be somewhat .predicated upon the claim that when her intestate arrived at the corner or point where his road touched the defendants’ road, and when for the first time the vehicles were visible to one another, the intestate’s car had arrived at a point where its driver had a reasonable right to consider that he could go on ahead of the outcoming defendants’ car. This contention, in my opinion, cannot prevail in the light of the facts. While the space formed by the opening of the left fork of the Neeley town road was approximately thirty-five feet, more than half of it lay to the east of the traveled part of the
The situation was not like that obtaining in Ward v. Clark (232 N. Y. 195) where the plaintiff’s car was seventy-five feet from the point of collision and the defendant’s car distant from the same spot about one hundred and fifty feet when' the two cars were discoverable to each other, and the rate of progress of the two seemed to be about the same so that a later view showed plaintiff’s car forty feet from the point of collision with the defendant’s car eighty feet away. There, the defendant’s “ right of way ” was denied when an application of the rule would produce ah unequal balance between the parties. Here, the relative -distances and speeds were not materially unequal. That is demonstrated by the fact that the intestate, notwithstanding his acceleration of speed, was unable to clear the oncoming car of the defendants concededly traveling at no greater speed than was the intestate before he increased his speed. As was said by Chief Judge His cock in Shirley v. Larkin Co. (239 N. Y. 94, 97): “ Notwithstanding the fact that he saw the approach of defendant’s truck under circumstances which plainly indicated that if both continued on their way as they were then going a collision would probably occur, he did so continue without again looking at the car which had the right of way and he came into the collision which he had every reason to expect he would come to unless the car which had the right of way suspended its course and gave to him a priority of passage to which he was not entitled. It is impossible to read the plaintiff’s evidence without being convinced that in wanton disobedience of the statute passed to insure greater safety of automobile traffic, he recklessly went on when it was his duty to wait for the other car and that he precipitated the accident which he is now seeking to charge to the defendant. While, as has been said, this statutory rule is to be construed sensibly, it certainly does require a reasonable observance by the car approaching an intersection and having the subordinate right of passage. It would be our duty under any circumstances to enforce such reasonable observance of this rule which the Legislature has adopted for the safety of travelers and certainly that duty is not rendered any the less commanding when we consider the number of accidents now being caused by the heedless management of automobiles and when intoxication and recklessness of drivers seem to vie with each other in producing a daily grist of injuries and tragedies.
Upon the ground that the intestate by his own negligence contributed to bring about the happening of the accident, I think this judgment should be reversed upon the law and the facts, with costs, and that the complaint should be dismissed, with costs.
Jaycox and Manning, JJ., concur; Lazansky, J., concurs for reversal, but dissents as to the dismissal of the complaint, being of opinion that the verdict finding defendants negligent was against the weight of the evidence; Kelly, P. J., dissents and votes to affirm, being of opinion that the questions of negligence and contributory negligence were for the jury.
Judgment reversed upon the law and the facts, with costs, and complaint dismissed, with costs.