Boston Insurance v. Brooklyn Heights Railroad

182 A.D. 1, 169 N.Y.S. 251, 1918 N.Y. App. Div. LEXIS 4420

Opinions

Laughlin, J.:

I fully agree with the views expressed by Mr. Justice Shbarn with respect to the construction and effect, in an action for damages arising from á collision between vehicles one of which is traversing a street or avenue in a northerly or southerly direction and the other of which is traversing an intersecting street, of the ordinance

Footnotes

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* giving the right of way to vehicles going northerly or southerly, but I am unable to concur in his construction of the written charge transmitted to the jury in answer to their written inquiry made to the court for advice as to which of the parties on the facts stated in their inquiry had the right of way at the crossing. The inquiry made by the jury and the written charge returned by the court thereto are to be construed in the light of the proceedings on the trial and particularly in the light of the instructions given by the court with respect to the effect of the ordinance giving the right of way to vehicles traveling northerly or southerly over vehicles traveling easterly or westerly and in the light of the rulings made by the trial court with respect to the requests to charge made by counsel for the plaintiff. Mr. Justice Shearn in his opinion states one of these requests which was denied but he omits another which followed and was likewise denied and which I think is material. After the court refused to charge plaintiff’s request that if the front of the automobile was from twenty to twenty-five feet from the railroad track at the time when the street car was from half to three-quarters of a block away the trolley car did not have the right of way, the court was requested by> counsel for plaintiff to instruct the jury that if the automobile “ got within the square formed by the intersection of Sixteenth Avenue and 45th Street before the trolley car, that at that point the trolley car would not have, as matter of law, the right of way.” If those were the facts, and the jury might well have so found on the evidence, I think it could not be said as matter of law that the trolley car had the right of way but that would be a question of fact for the jury depending on the speed at which the respective vehicles were approaching, and the court instead of declining the request should, at least, have instructed the jury that whether the trolley car did then have the right of way depended on whether or not, if the vehicles proceeded without changing their speed, the trolley car would have reached the path of the automobile before that vehicle would have cleared the street car track. The failure of the court to enlighten the jury on this assumed state of facts which they might have found evidently gave the jury considerable trouble in determining the issues and resulted in their sending the written inquiry to the court which is set forth in Mr. Justice Shearn’s opinion. It is evident that what the jury "wished to know was who had the right of way if they found that the automobile reached a point within thirty feet of the track when the trolley car was one hundred and twenty-five feet away. It must be assumed that the jury had found those to be the facts or that there was a prospect of their so finding. They made the inquiry in order to ascertain how the ordinance was to be applied if such were the facts. They asked but a single question, which showed that they desired information only on one point, namely, who had the right of way if they found the facts as stated in the question. That inquiry was answered and the jury were warranted in inferring that it was intended to be answered by the first sentence in the court’s written answer to the question, for therein the court said: “ Under the ordinance referred to in the charge the trolley car had the right of way over the automobile.” It may be that the learned court did not intend to instruct the jury as matter of law that on the state of facts assumed in the question the trolley car had the right of way, and merely intended to restate generally the effect of the ordinance; but bearing in mind the inquiry made by the jury and their purpose in so inquiring they would naturally, I think, infer that the court in the first sentence of the written answer intended to answer their question by stating that the trolley car. on that state of facts had the right of way. The court should have stated in answer to the question that it could not be said as matter of law which of the vehicles had the right of way and that it was a question for the jury depending upon how they found the facts with respect to the speed of the respective vehicles. • Any layman reading the written instructions sent to the jury in answer to their written request would have understood that the court first answered their request by stating that the trolley car had the right of way and that having the right of way it was the duty of the automobile to allow it to pass if in the opinion of the jury the trolley car was likely to reach the intersection at the time the automobile intended to cross and that an omission to do so might be regarded as a failure to exercise due care. In other words, all that the court stated in writing in answer to the written inquiry made by the jury is consistent with an intention on the part of the court to instruct the jury first that the trolley car on- that state of facts had the right of way but notwithstanding it had .the right of way they need not impute to the chauffeur contributory negligence in proceeding unless the trolley car was likely to reach the intersection at the time the automobile intended to cross. By these instructions the plaintiff was handicapped. The jury were required to proceed with the question of the chauffeur’s contributory negligence in the light of the fact that he had failed to accord to the trolley car the right of way to which it was entitled under the ordinance.

It is quite clear, therefore, I think, that the jury were misled by the written instructions and that the exception thereto presents reversible error, and for that reason I am of opinion that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Dowling and Page, JJ., concurred; Clarke, P. J., and Shearn, J., dissented.

See Code Ord. (1915), chap. 24, art. 2, § 15, subd. 1; Cosby’s Code Ord. (Anno. 1915), p. 336.— [Rep.