Murphy v. New York City Railway Co.

MacLean, J. From the testimony of himself, his companions and his chaffeur, it would appear that, when the plaintiff’s automobile, running at six Or seven miles an hour westerly along One Hundred and Twelfth street, reached the easterly house line of Eighth avenue, a south bound trolley car was seen 125 feet above the crossing, coming’ at fifteen to twenty miles an hour (twenty-two to thirty feet a second; that the automobile was not stopped, but proceeded at the same rate until the chaffeur put on the brakes and turned the ear southward just before colliding with the car about ten feet south of the northerly crossing. From the relative positions of the automobile and the oar when both were still just after the collision, and from the locations of the damage done to them severally, it would seem rather that the automobile ran into the car than the contrary, heightening the inference of contributory negligence on the part of the person managing the automobile, venturesomely continuing its course in the front of the car coming at high, even runaway speed. That phase of the contentions presented upon this appeal need not be further mentioned, as the evidence may be changed on a new trial which is necessary by reason of erroneous admissions, against objections and over exceptions, of evidence as to elements of damages provable in this case, namely, testimony as to the rental value of an automobile during the time the plaintiff’s was being repaired, although he neither used another nor showed that he had need of one,' and the testimony as to the costs of repairs other than those shown to be due to the accident. [239] Judgment reversed and new trial ordered with costs to appellant to abide the event. G-ildersleeve, J., concurs.