Harlan v. Joline

Bijur, J. The plaintiff’s automobile, being driven with his consent by a friend, was crossing Lenox avenue from west to east on One Hundred and Twenty-Second street. When it had reached Lenox avenue and was twenty to thirty feet from the south .bound car track of defendants, the chauffeur, looking to the north, saw a car coming south and then about one hundred and ten feet north of the automobile. The latter was proceeding at from three to five miles per hour; the car about fifteen miles per hour. The chauffeur spoke to his companion, who was sitting to the left of him in the front seat, who thereupon held out lr left hand toward the car, while the chauffeur proceeded to cross the track. The car hit the automobile about in the middle but slightly to the rear, and inflicted damages for which recovery is sought. The learned trial judge seemed to regard the motorman of the car as negligent, but treated the chauffeur’s course as contributory negligence as matter of law, because, as the judge said, he took upon'himself “a dangerous attitude” and a “ wild and reckless guess at what he might do.” This ruling, however, is not justified by the authorities. The chauffeur had equal right at this crossing with the defendants’ car. From the facts proved, the question, whether he was justified in assuming that the car was under control of the motorman and would be slowed down to enable him to cross without danger, should have been submitted to the determination of the jury. See Handy v. Metropolitan St. R. Co., 70 App. Div. 26, 32; Hugher v. Nassau El. R. R. Co., 142 id. 522; Lawson v. Metropolitan St. R. Co., 40 id. 307, affd., 166 N. Y. 589; Legare v. Union R. Co., 61 App. Div. 202, affd., 175 N. Y. 502 Judgment reversed and new trial ordered, with costs to appellant to abide the event. Seabury and Lehman, JJ., concur. Judgment reversed.