Buys v. Third Avenue Railroad

45 A.D. 11, 61 N.Y.S. 113

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1899
• Status: Published

Opinion

Woodward, J. :

This is an action for damages for personal injuries sustained by the plaintiff in a collision with one of the cars of the defendant company at the intersection of East Fifty-eighth street' and Third avenue, in the borough of Manhattan. The plaintiff, on the 19th of January, 1898, was the house surgeon of the Flower Hospital, and, in the absence of the ambulance surgeon, responded to an ambulance call which came into the hospital. The ambulance was driven by one McCoy, and the plaintiff sat on the rear seat, facing the front, in the manner customary with ambulance surgeons. It was necessary to pass through East Fifty-eighth street, going in a westerly direction, and in crossing Third avenue the rear wheel of the ambulance was struck by a cable car of the defendant running south, the vehicle being badly damaged and the plaintiff thrown to the pavement, sustaining the injuries which constitute the basis of this action. There was evidence from which the jury might properly conclude that the defendant was guilty of negligence, and that the plaintiff was free from negligence contributing to the accident, and, on the question being submitted, the jury returned a verdict for $500-. The defendant appeals from the judgment entered upon this verdict and from the order denying a motion for a new trial upon the minutes.

A careful examination of the matters called to the attention of this court by the defendant’s counsel leads to the conclusion that there was no reversible error on the part of the learned trial court. It has been held that a violation of a municipal ordinance was some evidence of negligence (Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488; McCambley v. Staten Island M. R. R. Co., 32 App. Div. 346); and it was proper on this trial to place before the jury the ordinance of the city of New York, giving to ambulances the right of way, as' that was one of the restrictions under which the defendant company operated its cars. . At street intersections the rights of all vehicles, in the absence of municipal or statutory regulations, are equal, but considerations of humanity step in and determine that ambulances shall have the right of way, and the defendant-owed the duty to' the public of operating its cars with reference to that ordinance. The duty to give the right of way is not absolute; it must “ yield the right of way where possible ” {§ 370 of the ordinances of the city of New York); and it was proper that'the jury should have this ordinance in view when determining the question of the defendant’s negligence.

The judgment and order appealed from should be affirmed, with costs.

Judgment and order unanimously affirmed, with costs,