Metzger v. Cushman's Sons, Inc.

• Decision Date: 08 June 1926
• Citation: 243 N.Y. 118,152 N.E. 695
• Parties: METZGER v. CUSHMAN'S SONS, Inc. (two cases).
• Court: New York Court of Appeals Court of Appeals

243 N.Y. 118

152 N.E. 695

METZGER

v.CUSHMAN'S SONS, Inc. (two cases).

Court of Appeals of New York.

June 8, 1926.

Action by William Metzger, an infant, by Frederick Metzger, his guardian ad litem, against Cushman's Sons, Inc. Judgments of the Trial Term, entered on the verdicts of a jury for plaintiffs, were affirmed by the Appellate Division (215 App. Div. 829, 213 N. Y. S. 859), and defendant appeals by permission.

Cardozo, J., dissenting.

Appeal from Supreme Court, Appellate Division, Second department.

Alfred W. Andrews and Theodore H. Lord, both of New York City, for appellant.

Sidney Gondelman, William S. Butler, and James A. Gray, all of Brooklyn, for respondent.

CRANE, J.

The charge of the court in this case regarding the rights of vehicles approaching intersecting street crossings must have left the jury in some doubt as to the application to be made by them of the ordinances of the city of New York. Section 15 of chapter 24 of the Code of Ordinances (Cosby's Code of Ordinances 1925, p. 621) directs:

‘Every driver of a vehicle approaching the intersection of a street or public road shall grant the right of way at such intersection to any vehicle approaching from his right; provided, that wherever police officers are stationed, they shall have full power to regulate traffic.’

William Metzger, on the 16th day of August, 1924, was crossing Bradford street on Belmont avenue in the borough of Brooklyn, city of New York, when he was run into by, or collided with, the defendant's motor truck coming through Bradford street. He was very severely injured.

As in so many of these street intersection cases, the question of negligence and contributory negligence depended upon speed and distance, together with the respective rights and duties of the parties as declared by the ordinance. The law does not undertake to say at what particular point or at what particular distance one vehicle may proceed in front of another. The right of way depends upon all the circumstances in light of the duties imposed by this ordinance. The plaintiff on a motorcycle was going east on Belmont avenue approaching Bradford street. The motor truck was coming from his right going north on Bradford street. The plaintiff says he was proceeding at about 8 miles an hour. The truck was coming at 18 or 25 miles an hour. These speeds are at best approximations. Jurors might differ as to the respective speeds. As the motorcycle got beyond the building line on the west side of Bradford street, the plaintiff could see to his right, and did see the motor truck coming up. Exactly where the plaintiff was must also be a question of fact dependent upon the accuracy of statement and the conclusion to be drawn from the testimony of the witnesses. He was somewhere between the building line and the curb when he saw the truck 90 feet away, and proceeded across the intersection until he was struck. The defense claimed that the plaintiff ran into the side of the truck.

The main charge to the jury accurately stated in substance the law as laid down by us in Ward v. Clark, 232 N. Y. 195, 133 N. E. 443, and Shirley v. Larkin Co., 239 N. Y. 94, 145 N. E. 751. If counsel for the plaintiff had left his case to the judge's charge, the error now complained of would not have occurred.

[2] Certain requests, however, were made which, as we have said, must have left the jury in doubt as to what was meant by the judge in his charge, or else have given them a wrong impression regarding the way in which they could, and should apply the above ordinance to the facts as they might find them. The court was requested to charge:

‘By Mr. Rees: I ask your honor to charge the jury that, if the jury finds, under the circumstances, at the time of this collision, and just before the collision, when the two vehicles were approaching the point of collision, the defendant had the right...