Shifman v. . Whalen

McLaughlin, J. On May 19, 1920, plaintiff’s intestate, then about fourteen years of age, was killed while crossing Flushing avenue near its intersection with Franklin avenue in the borough of Brooklyn, by defendant’s automobile truck. This action was brought to recover the damages sustained by reason of her death, upon the ground that the same was due to the negligence of the defendant. The plaintiff had a verdict for a substantial sum and from the judgment entered thereon an appeal was taken by defendant to the Appellate Division, which unanimously affirmed the judgment. The appeal to this court followed. The unanimous affirmance of the judgment by the Appellate Division withdraws from our consideration the question of defendant’s negligence and the intestate’s contributory negligence. There is left, however, one question which is raised by an exception to the charge which it is necessary to consider. The trial court, after drawing the jury’s attention to the fact that the driver of defendant’s truck was, at the time of the accident, approaching a street crossing at intersecting streets, which compelled him not only to have his truck under control, but to give a timely warning of its approach, charged that the Highway Law [Cons. Laws, ch. 25] (sec. 286, subd. 8) so required and that such law was applicable. He said: “ Upon approaching a pedestrian who is on the traveled part of any street and not upon a sidewalk, and *286 upon approaching an intersecting street or a curve or corner in the street where the driver’s view is obstructed, and where the traffic officer is not on duty, every driver of a vehicle will slow down the same and give a timely signal with his horn or other signalling device.” The charge as thus given was excepted to by defendant’s counsel, he saying: “ I wish to note also an exception to that portion of Your Honor’s charge where you read, I think, portions of the State Highway Law to the jury and I will state the grounds of my exceptions, namely, that by the charter of the Greater City of New York, also the law of the state, the State Highway Law was eliminated from operation in the streets of this city.” The court responded: “ Yes, but it seems to me the law which I read from the State Highway Law is also the law of this state, except where it is otherwise modified as part of the Traffic Law, and while I did read-from the statute, I will stand on the law which I stated as being the law applicable in this state.” To this statement defendant’s counsel also excepted. I am of the opinion that the exceptions are well taken. The Highway Law charged was not applicable to the case. The words “ where the traffic officer is not on duty ” do not, in fact, appear in the Highway Law. The law, as charged, with the exception of those words, was taken nearly word for word from section 286, subdivision 8, of that law. They appear in section 13, subdivision 2, of the General Highway Traffic Law (Cons. Laws, ch. 70), which is almost word for word similar to the portion of the Highway Law charged by the court, except that such words are added to it. The General Highway Traffic Law does not apply to the city of New York. Section 3 of that law specifically so provides. The portion of the Highway Law charged was added to it by chapter 374 of the Laws of 1910. It was reenacted in 1918 by chapter 540 and in 1921 by chapter 580, When this provision was inserted in the Highway *287 Law in 1910, there was enacted at the same time in the same law (sec. 288) the following provision: “ * * * and provided further that nothing in this article contained shall impair the validity or effect of any ordinances, regulating the speed of motor vehicles, or of any traffic regulations with regard to the operation of motor vehicles, heretofore or hereafter made, adopted or prescribed pursuant to law in any city of the first class * * New York is a city of the first class. It has been given broad powers to enact ordinances regulating street traffic. In pursuance of the powers thus given it has passed a Code of Ordinances, one chapter of which (Chap. 24) is devoted entirely to traffic regulations. This chapter sets forth a most comprehensive scheme and plan to regulate street traffic. The fact that there is no provision in the ordinances requiring a horn to be blown, or some signal given, upon approaching a pedestrian who is upon the traveled part of any street and not upon a sidewalk, and upon approaching an intersecting street or curve or corner in a street, when the view is obstructed, to slow down and give a timely signal with bell or horn, was not, as it seems to me, an oversight. Such provision was designedly omitted. It will be observed three things are required by section 286, subdivision 8, of a driver of a motor vehicle: (1) stop on signal; (2) slow down or, if necessary, stop when approaching or passing a street car; and (3) the omitted provision in the ordinances. The first two were taken over and re-enacted in the ordinances, while the third was omitted because it was deemed inapplicable to the city of New York. Not only this, but section 286, subdivision 8, of the Highway Law, so far as it contains the provision under consideration, has, itself, been partially repealed or amended by its incorporation with certain changes in section 13, subdivision 2, of the General Highway Traffic Law. That section imposes the same duty of slowing down and giving a timely signal upon approaching a *288 pedestrian who is in the traveled part of any street, and not upon a sidewalk, and upon approaching an intersecting street or curve or corner where the view is obstructed, as does section 286, subdivision 8, but it contains an exception by excluding this requirement —- when a traffic officer is on duty. The General Highway Traffic Law, as indicated, does not apply to the city of New York. If it be true, as contended, that section 286, subdivision 8, of the Highway Law does apply to the city of New York, then we have this curious and what one might call absurd situation — in every city in the state other than the city of New York, the presence of a traffic officer on duty relieves the driver of a motor vehicle of the necessity of slowing down and giving a signal on approaching a pedestrian on the traveled part of the highway, and not upon a sidewalk, and upon approaching an intersecting street, while in the city of New York alone, where traffic officers are most numerous, the exception applicable to every other city is withdrawn. I cannot believe such was the intent of the legislature. Judicial notice may be taken of the traffic conditions in the city of New York. With the aid of such notice the court can see that it would be not only impracticable, but well nigh impossible, for motor vehicles to slow down and sound a horn at every intersecting street. The common-law duty' of using reasonable care, as well as the requirements in the traffic regulations (sec. 41) are quite sufficient to charge the operator of a motor vehicle with the duty of slowing down and giving timely signal when danger would otherwise be incurred. The judgments appealed from should, therefore, be reversed and a new trial ordered, with costs to appellant to abide event. Hiscock, Ch. J., Hogan, Cardozo, Pound, Crane and Andrews, JJ., concur. Judgments' reversed, etc.