Mendleson v. Rensselaer

Kellogg, J.: The plaintiffs’ closed carriage was driving along the highway approaching a road intersecting it from the left at an acute angle as they approached it. The defendant with his automobile was traveling in the same direction. Plaintiffs’ carriage, in turning from the road into the intersecting road, did not turn to the right of the center of intersection of the two roads, as required by subdivision C of section 157 of the Highway Law (Laws of 1890, chap. 568, as amd. by Laws of 1902,- chap. 96), but it followed the usual line of travel and began to turn to the left before it arrived at the intersection of the roads. Just before plaintiffs began to turn to the left, the defendant’s automobile turned to the left for the purpose of passing the plaintiffs, and near the point of intersection of the roads a collision took place and plaintiffs’ carriage and horse and the defendant’s automobile were injured, and each party seeks to recover damages from the other on the ground of negligence. I think the County Court was justified in reversing the plaintiffs’ judgment, but not in dismissing the complaint. Plaintiffs expended for repairing the carriage $27.25, and it was then evidently in better condition than it was before the accident. They paid $18 for treating the horse, and the only alleged injury remaining to the horse is that it is timid, restless and difficult to manage when near an automobile. The witness as to the damage and repairs to the car [518] riage, while admitting its present condition, swore that before the accident it was worth.from $250 to $300, and. after the accident but $50 or $100, because a wagon that had gone through an accident would not sell for as much as it otherwise ■ would. The witness called to show the injury to the horse sw.ore that a family horse was worth $250; that he had seen this horse, in his stable, where it was kept, but he had not seen it outside; that if the horse shied and was uneasy and nervous when around an automobile, as a family horse it ivas worth but from $50 to $75. The evidence as to the amount of damage sustained by the injury to the horse and the carriage is unsatisfactory. As to the carriage, aside from the repairs, the alleged damage was purely fanciful and not worthy of consideration. The defendant was not required to pay the difference in value of the horse before and after the accident, treating it only as a-.family horse. The damages are excessive and are not founded upon any satisfactory basis, and the judgment of the City Court was,properly reversed. The law of the road, above cited, required the plaintiffs in turning the corner to the left to pass to the right 'of the center of intersection of the two roads, and subdivision B of that statute required the defendant- to pass the plaintiffs upon the left. Subdivision 1 of section 4 of the Motor Vehicle Law (Laws of 1904, chap. 538) recognizes the same rule. The defendant was familiar with these roads and we may assume knew these statutory provisions. He knew that if tlie plaintiffs were to turn the corner which they were approaching and he attempted to pass them on the left, as the statute contemplates, that it would probably cause a collision if they were, near the intersection at the same time. If there had been no intersecting high- . way the defendant could have passed. in safety, but it is a fair question of fact whether in attempting to pass the plaintiffs in the immediate. vicinity and while approaching this intersection from the left he was not guilty of negligence. ' A delay of a few moments would have enabled him to determine whether the plaintiffs -were to turn .the corner or not, and it may not be unreasonable to say that there -were sufficient opportunities to pass a team without attempting to pass at a point and upon a side where'the plaintiffs might desire to turn upon a connecting road. I think, therefore, [519] the question as to whether the defendant gave a sufficient warning, and whether he properly managed his machine in attempting to pass the plaintiffs at this particular point, were fair questions of fact. It is evident that the plaintiffs were not entirely to the right side of the intersecting point of the roads, but it is not clear that that fact had anything to do with the injury. We cannot say as a matter of law that the plaintiffs, in attempting to turn this corner in the usual beaten path when they saw no carriage upon the crossroad approaching them, were guilty of negligence. Perhaps it was reasonable for them to suppose that no one would attempt to pass them from- the rear at this corner and thus invite a collision. Plaintiffs’ violation of the statute was some evidence of negligence, but all the other facts making up the situation as it then was must be considered in determining whether they acted with due care. If the plaintiffs were negligent it is still a question of fact whether such negligence contributed as a cause to the injury. It was, therefore, a question of fact and not of law whether the plaintiffs were guilty of negligence which contributed as a cause to the injury. The judgment of the County Court is modified by striking there-' from the part thereof directing a dismissal.of the complaint and the award of costs to the appellants, and inserting in lieu thereof that a new trial is ordered before the City Court at a time to be specified, with costs to the defendant to abide the event, and as so modified said judgment is affirmed, with costs to the appellants to abide the event.. All concurred, except Cochrane, J"., who voted for a reversal of the County Court judgment and affirmance of the City Court, judgment, with opinion.