Russell v. Kemp

95 Misc. 582, 159 N.Y.S. 865

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 15, 1916
• Status: Published

Opinion

Bijur, J.

Plaintiff’s automobile, in charge of her son, was proceeding down the Ocean boulevard in Brooklyn running south and approaching Eighteenth street, which cross the boulevard at right angles. The car was running along about twenty-five feet from the right hand curb. The son, who was plaintiff’s only witness to the accident, testified that at a point about one hundred feet north of Eighteenth street he put up his hand (which is the signal that he was going to stop). He then turned around and saw defendant’s automobile about one hundred and fifty feet beyond and about one hundred and twenty feet from the curb, proceeding in the same direction, namely, to the south. When he reached the intersection of Eighteenth street, he put up his hand again, and then says that he turned around and saw defendant’s automobile running along on the same line about fifteen feet behind him. He then stopped and defendant’s automobile ran into the rear of plaintiff’s car.

It is perfectly manifest on this record that plaintiff’s son was guilty of contributory negligence. Not only did he violate every one of the traffic ordinances applicable to his case (except as to the rate of speed) but his course was so irrational that it is difficult to understand what plaintiff can claim defendant should have done under the circumstances. Plaintiff’s son testified that he had intended to turn west into Eighteenth street. Why he twice gave a stop signal if he intended to turn is incomprehensible. If he intended merely to stop, he violated the ordinance which required him to do so at the curb. He also violated the ordinance which required him to keep as near the right hand curb as possible while running along the road. This, however, under the circumstances, and at the rate of speed at which he was proceeding, was probably immaterial. More particularly, however, he violated the ordinance which requires that in turning under these circumstances he should keep as near as possible to the right hand curb.

I am of opinion that upon the facts conceded or claimed by the plaintiff the son was plainly guilty of contributory negligence and that no negligence can be predicated on the part of the defendant because in view of plaintiff’s irrational course he could formulate no sound plan for the safety either of his own or of the plaintiff’s car.

Hut and Philbiu, JJ., concur.

Judgment reversed and new trial granted, with thirty dollars costs to appellant to abide event.