171 Misc. 63 | City of New York Municipal Court | 1939
For several miles the plaintiff was operating his automobile on or about the 11th day of December, 1938, on the highway leading from Dansville, Livingston county, N. Y., southerly to the city of Hornell, N. Y., in the early evening and the defendant was operating his automobile in the same direction on the same highway in the rear of plaintiff’s automobile for several miles. After the plaintiff’s automobile had proceeded part way through the village of Arkport on the said highway the plaintiff observed a cat crossing the highway, and, as testified by him, in order to avoid hitting the cat, he suddenly stopped his automobile but did not give any signal by extending his arm in a horizontal position out of the window of said automobile. As a result of said sudden stopping the defendant’s automobile collided with the rear of plaintiff’s automobile, pushing it forward and causing plaintiff’s automobile to run over and kill the cat.
Prior to the adoption of the Vehicle and Traffic Law of the State of New York it was the law that a driver of an automobile owed a duty to vehicles proceeding along the highway in front of his automobile, but not in the rear. By the adoption of the Vehicle and Traffic Law such duty was changed. Subdivision 1 of section 83 of the Vehicle and Traffic Law provides: “ Except in an emergency, before decreasing speed or stopping, the driver of a vehicle shall give warning, either by holding his arm straight out horizontal and at right angles to the vehicle, or by operating an adequate mechanical signal device.”
According to the testimony the plaintiff’s automobile was equipped with a tail light or lights having a red lens and in addition an extra bulb in the tail light which was connected with the brake of the automobile so that when the brake was depressed a light bulb was Ugh ted so that it caused the lens of the tail fight to show a brighter red and that such tail fight was operating at the time of the accident. The question, therefore, arises as to whether or not such a device was an adequate mechanical device at night, although it may be.
The crossing of the road by the cat was not an emergency so that under the Vehicle and Traffic Law the plaintiff was obliged either to give a signal by holding out his arm or by an adequate mechanical signal device. If, of course, a person or a large animal or a large object was in the road which if collided with would have caused injury to a person or damage to property, it would be an emergency and the driver of such car would not be obliged to give any signal before stopping. In view of the duty imposed on the driver of an automobile, as before stated, before slowing down or stopping to give a warning and the plaintiff failed to give such warning as required by the Vehicle and Traffic Law, the plaintiff • was negligent, which negligence contributed to the accident, and cannot recover even though the defendant was negligent.
The defendant claims he suffered damage to his automobile because of the negligence of the plaintiff. The evidence shows that the defendant bad followed the plaintiff’s automobile for several miles prior to the accident and knew that the plaintiff’s automobile was ahead of him. The evidence also shows that after the defendant observed the plaintiff’s automobile had stopped in the road he applied his brakes on his automobile, which were in good working order, and slid the wheels of his car according to his testimony a distance of at least thirty feet. Evidently just before the collision the defendant was operating his automobile at too high a rate of speed under all the circumstances and was negligent to that extent and were it not for the defendant’s contributory negli
Under all the circumstances plaintiff is not entitled to recover against the defendant nor the defendant entitled to recover against the plaintiff for the damages suffered by each.
Judgment is directed in favor of the defendant dismissing the plaintiff’s complaint and in favor of the plaintiff dismissing the defendant’s counterclaim. Therefore, judgment is entered in favor of the defendant against the plaintiff of no cause of action and for the sum of five dollars and fifty cents costs.