Albertson v. Ansbacher

Lehman, J. The plaintiff has brought this action for damages to an automobile, owned and operated by him, through a collision with an automobile owned by the defendant and operated by his chauffeur. In order to recover the plaintiff must of course show that the damages occurred solely through the negligence of the defendant and without any contributory negligence on his part. There is no serious dispute as to the facts in this case. A few minutes previous to the accident a chain on one of the rear wheels of the plaintiff’s car broke, wound itself around the axle of the car and blocked the car so that it was stopped at once. At that time the car was on the right-hand side of the road facing north but a few feet from the curb. The plaintiff and a friend who was driving with him got out of the car in order to try to repair it. While the car was standing in that position the defendant’s car collided with it. Defendant does not claim that the collision was due to inability to stop his car, but the chauffeur [529] testified that he never saw the plaintiff’s car until the collision actually occurred. The accident occurred at night on one of the main drives of Central Park. This road is lit up by lanterns about seventy-five feet apart and it seems to me clearly impossible for any person exercising any degree of care at. all to fail to see an automobile until he collided with it. "It is true that it appears that the night was “somewhat misty,” but unless there was a most unusual fog that night, if the defendant’s chauffeur was exercising any watchfulness he would have seen the plaintiff’s car, and it appears from the testimony of a disinterested witness who was passing both cars at this time that he did see plaintiff’s car before the accident. Moreover, if we assume that that night an unusual fog existed which would have prevented the defendant’s chauffeur from seeing the plaintiff’s car until he struck it, then the defendant’s chauffeur is convicted of negligence out of his own mouth for he has testified that his car was going at the rate of about twelve miles an hour and I think as a matter of law it is negligent for a chauffeur to proceed at the rate of twelve miles an hour in Central Park on a night when he cannot see beyond the hood of the car. The defendant’s chauffeur, therefore, upon any possible theory of the case, was, in my opinion, guilty of negligence and a finding to the contrary is erroneous. The only question then remaining in the case is whether the plaintiff has shown that he himself was free from negligence. There is no claim that any negligence can be predicated from the breaking of the chain, and since the car was at a standstill at the time of the accident there can.be no claim of negligence in its operation at that time. The lights on the car were lit, but the plaintiff’s passenger was working around the wheel and testified that he could not state whether his body might not have been interposed between the tail light of the [530] car and the oncoming automobile. I do not think that, in attempting to make repairs under the circumstances shown in this case, it can reasonably be claimed that the plaintiff or his agent was bound at all times to see that their tail light was not obscured, and any finding that such act constituted contributory negligence would be decidedly against the weight of evidence if not erroneous as a matter of law. Moreover, if such an act would constitute negligence, it could not have contributed to the accident for the defendant’s'chauffeur palpably would have seen the automobile even without the tail light if he had looked, and if he did not look the presence of a tail light could not have helped him. The only other possible claim of negligence on the part of the plaintiff might arise from the position of the car some feet from the curb. If the car stopped at that position and could not be moved until the chain was unwound from the axle, then no possible negligence can be predicated from the position of the car. In my opinion the record shows clearly that this was the case. It follows that the judgment should be reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event. Weeks, J., concurs.