Edick v. Davenport

Per Curiam.

On September 19, 1925, in the daytime, the plaintiff, appellant, was on his premises on the easterly side of Railroad street just north of Main street in the village of Parish, N. Y. Respondent was driving a Ford sedan westerly on Main street, and one Fogg was driving a truck northerly on Railroad street. There was credible testimony that respondent was driving at a high rate of speed; that the two automobiles reached the street intersection at about the same time; that the respondent’s sedan slid along the pavement from thirty-six to sixty feet immedi *199 ately before the collision; that respondent’s car swerved to its right just before the impact; that the automobiles collided northerly and westerly of the center of the intersection of Main and Railroad streets; that the respondent’s sedan struck the right rear wheel of the Fogg truck, reasonably indicating that if respondent had been running more slowly or had turned toward the left, he would have avoided the truck, which had evidently been turned toward the left to escape the sedan. As a result of the collision the rear of the Fogg truck was swung to the west, and it ran on northeasterly thirty or forty feet up over the curb and against the appellant, injuring him. When appellant’s case was in, the court granted nonsuit on the ground that there was no evidence of negligence in respondent.'

Under the indicated testimony the appellant did not as a matter of law fail to establish negligence in respondent. Furthermore, the “ right of way rule ” (Gen. Highway Traffic Law, § 12, subd. 4) did not require a nonsuit by fastening all possible responsibility upon Fogg, the driver of the north-bound truck; for, under the testimony, Fogg (unlike the plaintiff in Shirley v. Larkin Co., 239 N. Y. 94 ) was not as a matter of law placed in a position where he was bound to avoid a collision by slowing down or stopping his truck. Whether or not respondent was negligent and his negligence at least a partial, proximate cause of appellant’s being injured, were jury questions. (Hancock v. Steber, 208 App. Div. 455 ; Ward v. Clark, 232 N. Y. 195 .)

The judgment should be reversed on the law and a new trial granted, with costs to appellant to abide the event.

All concur. Present — Hubbs, P. J., Clark, Sears and Taylor, JJ.

Judgment reversed on the law and new trial granted, with costs to appellant to abide the event.