Napier v. Bossard

Citation102 F.2d 467
Decision Date06 March 1939
Docket NumberNo. 135.,135.
PartiesNAPIER v. BOSSARD.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Michael F. Walsh, U. S. Atty., of Brooklyn, N. Y. (Vine H. Smith and William S. Perlman, Asst. U. S. Attys., both of Brooklyn, N. Y., of counsel), for appellant.

Louis Rothbard, of Brooklyn, N. Y. (Francis J. Hughes, of New York City, of counsel), for appellee.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

This is an action to recover for the death of the plaintiff's wife who, while walking on the side-walk, was struck by a taxicab driven by one, Ragone. Her husband sued both Ragone and the appellant, Bossard, and the jury found both liable: Bossard alone appealed. Ragone's cab collided with a Post-Office truck, driven by Bossard, approaching from Ragone's right along another street; the rear of the cab was thrown off to the left, and slewed over onto the side-walk, where it struck the deceased. The action was brought on the theory that both drivers were at fault, and the chief question upon the appeal is whether there was enough evidence to hold Bossard. The cause was brought in the state court, and removed under § 76 of Title 28 U.S.Code, 28 U.S.C.A. § 76, because Bossard was driving the truck "under or by authority of" the postmaster of Brooklyn, who was an "officer * * * acting by authority of" a "revenue law". United States v. Bromley, 12 How. 88, 96, 97, 13 L.Ed. 905; Ward v. Congress Construction Co., 7 Cir., 99 F. 598; Warner v. Fowler, Fed.Cas. 17,182; West v. Prudential Ins. Co., D.C.W.D.Mo., 34 F.2d 449. Before removal the plaintiff took the deposition of Ragone, as a party defendant, under § 288 of the N.Y.Civil Practice Act.

The accident happened at about 5:30 P. M. on January 14th, and it was dark. East 17th Street in the Borough of Brooklyn runs north and south: Avenue J crosses it at right angles. Omitting Ragone's deposition, the testimony was as follows. Ragone, with four fares in his car, was coming north on 17th Street at about 35 miles an hour: Bossard was driving his truck west on Avenue J towards 17th Street, at about eighteen miles an hour. When about 50 feet from the east curb of 17th Street he looked to his left, but did not see the cab; he could then see about 125 feet down 17th Street. He did not look again till he got to the east curb of 17th Street, and then he saw the cab, 50 feet south of the south curb of Avenue J, and about 70 feet from the place of collision: he reduced his speed to twelve miles but kept on. Ragone also kept on with some increase in speed, swung to his left, then to his right, and almost succeeded in crossing in front of the truck; but not quite, for his right rear fender was struck by the right end of the truck's bumper which twisted the rear of the cab over upon the side-walk. Upon these facts we think that Bossard's right of way under subd. 4 of § 82 of the N. Y. Vehicle and Traffic Law, Consol.Laws, c. 71, was decisive. The Court of Appeals has several times declared that although this statute does not establish a positive duty on the privileged car to keep on — like the crossing rule at sea — and although its driver must be governed by the relative positions, directions and speeds of the two cars, nevertheless the right of way "will establish precedence when rights might otherwise be balanced". Ward v. Clark, 232 N.Y. 195, 198, 133 N.E. 443, 444. Again: "If the two vehicles are so near the intersecting point that there is a chance of collision if both keep on at the same speed, then the statute says the vehicle approaching from the right may take precedence". Shuman v. Hall, 246 N.Y. 51, 55, 158 N.E. 16, 17; Shirley v. Larkin Co., 239 N.Y. 94, 97, 145 N.E. 751, declares the same doctrine, but in terms of the duty of the burdened car. See also Metzger v. Cushman's Sons, Inc., 243 N.Y. 118, 152 N.E. 695, and Webber v. Graves, 234 App. Div. 579, 255 N.Y.S. 726. It is inherent in any right of way that the privileged party may under some circumstances hold on, for otherwise no privilege would exist, and the phrase would be meaningless: the only question is when he must yield, and the decisions leave that point very largely open. In the case at bar, Ragone's fault is too clear for discussion, but we think that the jury could not properly have held Bossard....

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34 cases
  • Arnstein v. Porter
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • February 11, 1946
    ...upon it all." United States v. Darton, 25 Fed.Cas.14,919, at page 770; Moore, Facts (1898) § 994. 10 Rule 26(d). 11 Napier v. Bossard, 2 Cir., 102 F.2d 467, 468-469. Of course, under the Rules, the deposition of an adverse party may be used "for any purpose," but it is not a compulsory subs......
  • Hart v. RCI Hospitality Holdings, Inc.
    • United States
    • U.S. District Court — Southern District of New York
    • March 11, 2015
    ...the Court hopes and expects that [plaintiffs] will opt to make the witnesses available for trial.” Id. at *2 (citing Napier v. Bossard, 102 F.2d 467, 469 (2d Cir.1939) ). These principles are well-established and concern who will testify.But these principles are distinct from the question o......
  • In re Air Crash Disaster at Stapleton Intern.
    • United States
    • U.S. District Court — District of Colorado
    • June 7, 1989
    ...testimony is an imperfect substitute for personal testimony which should only be used when the witness is unavailable. Napier v. Brossard, 102 F.2d 467 (2d Cir.1939) (Friendly, J. "The deposition has always been, and still is, treated as a substitute, a second-best, not to be used when the ......
  • United States v. Empire Gas Corporation
    • United States
    • U.S. District Court — Western District of Missouri
    • May 6, 1975
    ...was not subject to any objection. That consideration sustains Judge Learned Hand's oft-quoted observation in Napier v. Bossard, (2nd Cir. 1939) 102 F.2d 467 at 469, that "the deposition has always been, and still is, treated as a substitute, a second-best, not to be used when the original i......
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