189 A.D. 238 | N.Y. App. Div. | 1919
The action is one for negligence. The plaintiff was the driver of a water wagon in the department of street cleaning. He was proceeding west upon One Hundred and Thirty-eighth street towards the intersection with Mott avenue. Mott avenue was considerably wider at this point than it was further north. There was a plaza there. Mott avenue to the south went to the river and was little used; to the north it was much used. There was a pole upon which the railroad wires were strung in One Hundred and Thirty-eighth street to the eastern part of this plaza. It was about forty-five feet east from the east line of Mott avenue, extended from the north. It was somewhat west from the east line of Mott avenue as it turned in and made the plaza from the south. It was south of the property owned by the New York Central railroad used as a station. The plaintiff was going west upon his water wagon and did not desire to turn into Mott avenue, but desired to turn across the street from the north to the south so as to proceed easterly and water the south side of the street. He swears that he looked to the east and saw a car about 150 feet away. The next he saw of the car was when he was turning the car struck his wagon and pushed it against this trolley pole and caused plaintiff’s injury. The jury rendered a verdict for the defendant.
There is another ground upon which the judgment should be reversed. There is an ordinance of the city which reads as follows: “ 6. Turning to the left into another street. A vehicle turning to the left into another street shall pass to the right of and beyond the center of the street intersection before turning.” (Code of Ordinances [1916], chap. 24, art. 2, § 11, subd. 6.) This ordinance was admitted in evidence over the plaintiff’s objection. I do not think it was competent evidence. In the first place the plaintiff was not turning into another street so he was not subject.to the provisions of the ordinance. In the second place in my opinion this point should- not be deemed the intersection of the street. The main travel upon Mott avenue to the north would be entirely to the west of this trolley pole and in fact the main travel north upon Mott avenue coming from the west upon One Hundred and Thirty-eighth street would be to the west of this trolley pole. I think that
It seems clear that the jury must have drawn the inference from this charge of the court and refusal to charge the plaintiff’s requests that the plaintiff was guilty of contributory negligence, or, at least, that it was evidence upon his contributory negligence that he did not pass the intersection of Mott avenue and go over upon the west side before turning around. Neither the ordinance nor the general rule applies. He was practically east of the traffic, both north and south upon Mott avenue, and it was perfectly proper for him to cross over the street where he did. This charge to the jury presents a wrong basis upon which to determine the plaintiff’s contributory negligence. For this error also I think the judgment should be reversed.
The judgment’and order should be reversed and a new trial granted, with costs to appellant to abide the event.
Clarke, P. J., Laughlin, Dowling and Merrell, JJ., concurred.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event..