De Carvalho v. Brunner
| Decision Date | 23 April 1918 |
| Citation | 119 N.E. 563,223 N.Y. 284 |
| Parties | DE CARVALHO et al. v. BRUNNER et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
Action by Anna Vairoli de Carvalho and others, executors, etc., against Oscar C. Brunner and Johnston & Co. From a judgment of the Appellate Division (171 App. Div. 938,156 N. Y. Supp. 1119), reversing a judgment of the Trial Term for plaintiffs and against defendant Johnston & Co., and dismissing the complaint as to such defendants, plaintiffs appeal. Reversed, and new trial granted.
Wayne M. Musgrave, of New York City, for appellants.
Lyman A. Spalding, of New York City, for respondents.
The plaintiffs in this action seek to recover damages for the death of Luiz da Cunha Carvalho who was struck and killed by a truck owned by the defendant Brunner. The accident happened at about noon April 25, 1911, on Water street near the corner of Wall street in the city of New York.
The truck owned by Brunner was a one-horse truck and was going north in Water street. At the same time a two-horse truck owned by the defendants E. J. Johnston & Co. was also going north in Water street. When about 175 feet south of Wall Street the drivers of the two trucks began to race. The defendants' two-horse truck was on the right or east side of the street near the curb, while the one-horse truck was to the left near the middle of the street. The trucks were going, as one of the witnesses said, at about the same rate of speed as an ambulance or fire engine ‘responding to an emergency call.’ Water street near Wall street is about 20 feet wide between curb lines and is a busy street. An ordinance of the city at the time in force prescribed that no person in charge of any vehicle on a city street shall drive at a greater speed than is reasonable, having regard to the traffic and use of the highways or so as to endanger the life or limb of any person. As they proceeded, the one-horse truck gained on the two-horse truck and passed over in front of it at Wall street and then went north near the easterly curb. The two-horse truck drew off to the left and passed north near the middle of the street. At that time the hubs of the trucks were about a foot apart. When they were about 15 feet north of Wall street the one-horse truck struck the plaintiffs' testator, who was crossing the street, and killed him.
At the Trial Term a verdict of $10,000 was rendered against all the defendants. The defendants Johnston & Co. appealed to the Appellate Division, but the defendant Brunner did not appeal. The Appellate Division reversed the judgment and dismissed the complaint as against the defendants Johnston & Co. The appeal here is by the plaintiffs...
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