Bartholomew v. New York Tel. Co.

• Decision Date: 28 October 1970
• Parties: Edith BARTHOLOMEW, Appellant, v. NEW YORK TELEPHONE COMPANY et al., Respondents, and Harry N. Wetmore, Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 71

315 N.Y.S.2d 71

35 A.D.2d 767

Edith BARTHOLOMEW, Appellant, v. NEW YORK TELEPHONE COMPANY et al., Respondents, and Harry N.

Wetmore, Jr., Appellant.

Supreme Court, Appellate Division, Third Department.

Oct. 28, 1970.

Marvin D. Parshall, Worcester, for appellant Bartholomew.

Leamy, VanWoert & Dunn, Oneonta (John K. Dunn, Oneonta, of counsel) for respondents.

Kramer, Wales, Robinson & McAvoy, Binghamton (Philip J. Kramer, Binghamton, of counsel) for appellant Wetmore.

Before HERLIHY, P.J., and REYNOLDS, STALEY, GREENBLOTT and SWEENEY, JJ.

MEMORANDUM DECISION.

Appeals by the plaintiff and the defendant Wetmore from a judgment of the Supreme Court, entered June 10, 1969 in Otsego County, upon a verdict rendered at a Trial Term.

This is a negligence action. The plaintiff was a passenger in an automobile being operated by her son, defendant Wetmore, in a westerly direction on Spruce Street in the City of Oneonta, New York. The Wetmore vehicle was in collision at the intersection of Spruce Street and Maple Street with a truck owned by the defendant New York Telephone Company and being operated in a northerly direction on Maple Street by the defendant Vagliardo. As a result of the collision plaintiff was thrown from the vehicle and severely injured. The jury found defendant Wetmore solely responsible for the accident. It is defendant Wetmore's contention that the verdict is contrary to the weight of the credible evidence. Plaintiff contends that the evidence raised issues of fact which were properly resolved by the jury. Plaintiff also appeals the verdict in favor of the Telephone Company. It is uncontroverted that there was a stop sign and a blinking red light controlling traffic proceeding north on Maple Street and a blinking amber light controlling traffic proceeding west on Spruce Street. It was clear, dry and daylight. Both streets are straight and level. The defendant Wetmore testified he was proceeding about 20 miles an hour and when about 30 feet from the intersection he first saw the Telephone Company truck stopped. He slowed down, looked in the other direction and proceeded into the intersection, when he was hit. He further testified that after the accident Vagliardo admitted that it was his fault. Vagliardo testified that he stopped; looked both ways; there was nothing obstructing his view, but, he saw nothing; he shifted into second gear and was going about 10 miles an hour when the collision occurred; and did not see the Wetmore vehicle until just prior to the collision. He did not deny the conversation testified to by the plaintiff, but stated he was upset at the time. The record also reveals there was damage to the driver's side of the Wetmore vehicle and to the front of the truck, and while there was damage to the front of the Wetmore vehicle, this was explained by its collision with the tree after the accident.

Neither driver approaching this intersection had an absolute right of way. Each was obligated to use reasonable care under the circumstances by exercising forbearance and caution regardless of the color of the traffic light. (Shea v. Judson, 283 N.Y. 393, 28 N.E.2d 885; Leach v. Patroon Cab Co., 27 A.D.2d 769, 277 N.Y.S.2d 58.) Section 1142 of the Vehicle and...