Grulich v. Paine

• Decision Date: 31 May 1921
• Citation: 231 N.Y. 311,132 N.E. 100
• Parties: GRULICH v. PAINE.
• Court: New York Court of Appeals Court of Appeals

231 N.Y. 311

132 N.E. 100

GRULICH

v.PAINE.

Court of Appeals of New York.

May 31, 1921.

Action by Carl W. Grulich against Charles Paine. From a judgment of the Appellate Division (181 App. Div. 969,167 N. Y. Supp. 1102) which reversed a judgment of the Trial Term in favor of plaintiff, and dismissed the complaint, plaintiff, appeals.

Judgment of Appellate Division reversed, and that of Trial Term affirmed.

Appeal from Supreme Court, Appellate Division, Fourth department.

J. T. McCaffrey and John R. Pidgeon, both of Oswego, for appellant.

Elisha B. Powell, of Oswego, for respondent.

CHASE, J.

This action is brought to recover damages for personal injuries received by the plaintiff as the result of a collision between his motorcycle and the defendant's automobile. The plaintiff is a young man, who, on October 13, 1915, was employed in Oswego. At noon he took his motorcycle and started riding thereon toward his home about 1 1/2 miles away. In going home he went south on West First street, and it was necessary for him to pass an abutting driveway and cross Utica street. West First street is an open paved street 66 feet wide from curb to curb, with a trolley railroad track in the center. Utica street is 100 feet south of the driveway, and crosses West First street at right angles, and in the center of it are the tracks of the New York Central Railroad.

It is conceded that the driveway is owned by the New York Central Railroad Company, and that it is not a public street of the city of Oswego. It runs west from West First street to West Second street, and passes the north side of the New York Central Railroad depot, the front of which faces on Utica street. The driveway is paved, 50 feet wide from curb to curb, and in common use by the public. On the day of the collision, as plaintiff rode his motorcycle south up the west side of West First street, there was no vehicle or person within the curb line and within sight on West First street, Utica street, or the driveway, except plaintiff, with his motorcycle and the defendant, who was driving an automobile down the east side of West First street.

The jury could have found that when the plaintiff was 25 feet north of the north curb of the driveway he saw the defendant coming down the east side of West First street, about 75 feet south of a line extended from the south curb of the driveway, and that plaintiff and defendant were then about 150 to 175 feet apart; that plaintiff looked toward the candy works, which has a driveway, and is on the east side of West First street, and then into the driveway back of the depot and, turned to look south again; that he was then near the curb at the southwest corner of the driveway and West First street, and the front of defendant's automobile was but 2 feet from him, and so close that he could not stop in time to avoid a collision; that plaintiff turned his motorcycle towards the west, and the collision occurred as plaintiff was inside the west curb line of West First street, and very near the south curb line of the driveway; that the motorcycle came between the front lights of the automobile, and both machines were to some extent injured; that the motorcycle was overturned, and plaintiff fell to the payment, and was pushed along thereon by the automobile for about 6 feet, and when they stopped plaintiff lay from 2 to 4 feet north of the south curb of the driveway, and about 6 feet inside of the west line of West First street; that the automobile was standing in a southeasterly and northwesterly direction, with its front wheels against the motorcycle and the back wheels in West First street; that on approaching the driveway the defendant did not blow a whistle or horn, or give any signal; that plaintiff was running about 10 miles an hour, and could have stopped the motorcycle in 4 or 5 feet, and the defendant was running the automobile about 20 miles an hour.

The testimony presented at the trial by the defendant with reference to the collision differs materially from that presented by the plaintiff, except that it substantially shows that the defendant crossed West First street on a diagonal line commencing south of the south curb line of the driveway and approached the driveway near its south curb.

At the Trial Term the jury found a verdict in favor of the plaintiff. An appeal was taken from the judgment entered thereon to the Appellate Division, where the judgment was reversed, and the complaint dismissed. 181 App. Div. 969,167 N. Y. Supp. 1102. No opinion was written at the Appellate Division. In the order of reversal, however, it is said: ‘Held, that the plaintiff was guilty of contributory negligence as matter of law.’ One of the justices dissented, and voted for affirmance.

[1] The reversal upon the law implies that the Appellate Division has examined the facts and is satisfied therewith, but finds that on the law the plaintiff was...