Massa v. Brooklyn & Queens Transit Corp.

257 A.D. 973, 13 N.Y.S.2d 40, 1939 N.Y. App. Div. LEXIS 8747

Opinion

Action by plaintiff to recover damages for personal injuries sustained by plaintiff’s intestate, causing his death, by reason of alleged negligence of defendant, resulting in a collision at an intersection, between an automobile and a street ear. Judgment for plaintiff upon the verdict of a jury affirmed, with costs. In our opinion the weight of the credible evidence establishes that the automobile struck the street car and became imbedded in the right front side of the latter as the automobile was attempting to avoid the impending collision by swinging to the right or in an easterly direction. There was competent proof, nevertheless, from which the jury could find that as the street car started to cross Nostrand avenue and continued so to do, its motorman had an unobstructed view of the approach of the automobile, which was proceeding northerly at a moderate rate of speed and that, under all the circumstances, the street car should have given way and permitted the automobile to proceed. Lazansky, P. J., Hagarty and Carswell, JJ., concur; Adel and Close, JJ.-, dissent and vote to reverse and grant a new trial on the ground that the verdict of the jury is against the weight of the evidence.