Friedman v. Ruggiero

Appellate Terms of the Supreme Court of New York

Friedman v. Ruggiero

123 Misc. 919, 206 N.Y.S. 693, 1924 N.Y. Misc. LEXIS 1250

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 13, 1924

StatusPublished

This text of 123 Misc. 919 (Friedman v. Ruggiero) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Friedman v. Ruggiero, 123 Misc. 919, 206 N.Y.S. 693, 1924 N.Y. Misc. LEXIS 1250 (N.Y. Ct. App. 1924).

Pincite

Opinion

Per Curiam.

Plaintiff was driving his automobile south on the west roadway of Park avenue between One Hundred and Seventh and One Hundred and Sixth streets in daylight hours. Park avenue at this point is divided by the stone viaduct of the railroad, twenty-five to thirty feet in width. At One Hundred and Sixth street the viaduct is pierced by four parallel tunnels, the most northerly and southerly being comparatively small for pedestrians and the two middle ones being for west- and east-bound vehicular travel respectively.

Plaintiff testified that he had blown his horn, looked to the east and saw nothing as he approached One Hundred and Sixth street, and when practically opposite the dividing wall between the two vehicular tunnels the rear of his car was struck by defendants’ automobile, going west as it emerged from the northerly tunnel. Plaintiff’s car was overturned by the impact. He looked toward Third avenue before he crossed and saw nothing. He was running at a speed of from thirteen to fifteen miles an hour.

On this evidence the learned court said: “ He did not look through the tunnel from which vehicles come, and if he looked he would have been able to determine that this car was too close to him to enable him to cross in safety. He had no right to drive at the rate of 13 or 15 miles an hour when approaching a tunnel of that description.” The learned court was in error in saying that he did not look through the vehicular tunnel. The question in that respect on cross-examination was: “ Q. So that you didn’t look through the tunnel- where the vehicles came through? A. No, I didn’t see anything.” Just what the witness meant by the answer in its context was for the jury to determine. Whether if [921]*921he had looked he would have been able to determine that defendants’ ear was too close to him to enable him to cross in safety is plainly also a question for the jury, for the inference from the force of impact is that defendants were driving at a very great rate of speed.

Altogether, in view of the exceptional character of the crossing, the ordinary formulae upon which occasionally courts have undertaken to determine that plaintiff was guilty of contributory negligence as matter of law are inapplicable. Similarly, it is a question of fact whether thirteen to fifteen miles an hour was negligence under the circumstances, particularly because plaintiff had the right of way over defendants’ car.

Finally, assuming that plaintiff might be chargeable with some negligence in some phase of his conduct at the time, the question whether that negligence contributed to the accident is also a question of fact.

Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur; present, Guy, Bijur and Mullan, JJ.

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Per Curiam.

Plaintiff was driving his automobile south on the west roadway of Park avenue between One Hundred and Seventh and One Hundred and Sixth streets in daylight hours. Park avenue at this point is divided by the stone viaduct of the railroad, twenty-five to thirty feet in width. At One Hundred and Sixth street the viaduct is pierced by four parallel tunnels, the most northerly and southerly being comparatively small for pedestrians and the two middle ones being for west- and east-bound vehicular travel respectively.

Plaintiff testified that he had blown his horn, looked to the east and saw nothing as he approached One Hundred and Sixth street, and when practically opposite the dividing wall between the two vehicular tunnels the rear of his car was struck by defendants’ automobile, going west as it emerged from the northerly tunnel. Plaintiff’s car was overturned by the impact. He looked toward Third avenue before he crossed and saw nothing. He was running at a speed of from thirteen to fifteen miles an hour.

On this evidence the learned court said: “ He did not look through the tunnel from which vehicles come, and if he looked he would have been able to determine that this car was too close to him to enable him to cross in safety. He had no right to drive at the rate of 13 or 15 miles an hour when approaching a tunnel of that description.” The learned court was in error in saying that he did not look through the vehicular tunnel. The question in that respect on cross-examination was: “ Q. So that you didn’t look through the tunnel- where the vehicles came through? A. No, I didn’t see anything.” Just what the witness meant by the answer in its context was for the jury to determine. Whether if [921]*921he had looked he would have been able to determine that defendants’ ear was too close to him to enable him to cross in safety is plainly also a question for the jury, for the inference from the force of impact is that defendants were driving at a very great rate of speed.

Altogether, in view of the exceptional character of the crossing, the ordinary formulae upon which occasionally courts have undertaken to determine that plaintiff was guilty of contributory negligence as matter of law are inapplicable. Similarly, it is a question of fact whether thirteen to fifteen miles an hour was negligence under the circumstances, particularly because plaintiff had the right of way over defendants’ car.

Finally, assuming that plaintiff might be chargeable with some negligence in some phase of his conduct at the time, the question whether that negligence contributed to the accident is also a question of fact.

Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur; present, Guy, Bijur and Mullan, JJ.

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Bluebook (online)

123 Misc. 919, 206 N.Y.S. 693, 1924 N.Y. Misc. LEXIS 1250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friedman-v-ruggiero-nyappterm-1924.