Bookhout v. Hays

252 A.D. 815, 298 N.Y.S. 829, 1937 N.Y. App. Div. LEXIS 6365

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 8, 1937
• Status: Published

Opinion

Defendant has appealed from a judgment in plaintiff’s favor and from an order denying his motion for a new trial. The action is one to recover damages for negligence. On May 1,1935, between eleven and twelve o’clock at night, plaintiff was operating an automobile easterly on Center street in the city of Oneonta and the defendant was operating an automobile southerly on Maple street. The latter street intersects the former at right angles. The two cars came into collision at the intersection of these highways. By a city ordinance Center street was designated as a through street and it was the duty of defendant before entering it from Maple street to bring his automobile to a full stop. An ordinance of the city of Oneonta provides it shall be unlawful for any person to drive a motor vehicle in the city of Oneonta at a rate of speed to exceed twenty miles per hour for a distance of more than one-quarter of a mile. Plaintiff’s evidence established that as he approached the intersection of the two streets his car was being operated at a rate of speed of from thirty-five to forty miles per hour. There is no proof to indicate whether or not that speed was maintained for more than a quarter of a mile. There is evidence which would warrant a jury in finding that defendant failed to bring his car to a stop before entering the intersection and failed to give the right of way to plaintiff who was approaching from his right. Defendant urges that plaintiff was guilty of contributory negligence as a matter of law in driving his automobile at a rate of speed of from thirty-five to forty miles an hour at the time of the collision. The trial court held that this was a question of fact for the jury. Judgment and order unanimously affirmed, with costs. Present — Hill, P. J., Rhodes, McNamee, Bliss and Hefíernan, JJ.