Northup v. Gage

• Decision Date: 07 May 1958
• Citation: 6 A.D.2d 748,173 N.Y.S.2d 927
• Parties: Nina NORTHUP, an infant, by Carlton E. Northup, her guardian ad litem, Plaintiff-Respondent-Appellant, v. Gilbert GAGE, Defendant-Respondent, and Robert Ulmer, Defendant-Appellant. Carlton E. NORTHUP, Plaintiff-Respondent-Appellant, v. Gilbert GAGE, Defendant-Respondent, and Robert Ulmer, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 927

173 N.Y.S.2d 927

6 A.D.2d 748

Nina NORTHUP, an infant, by Carlton E. Northup, her guardian ad litem, Plaintiff-Respondent-Appellant, v. Gilbert GAGE, Defendant-Respondent, and Robert Ulmer,

Defendant-Appellant.

Carlton E. NORTHUP, Plaintiff-Respondent-Appellant, v. Gilbert GAGE, Defendant-Respondent, and Robert Ulmer,

Defendant-Appellant.

Supreme Court, Appellate Division, Fourth Department.

Argued March 13, 1958.

Decided May 7, 1958.

Bond & McDonald, Geneva (William J. McDonald, Geneva, of counsel), for defendant-appellant Ulmer.

Thomas Croucher, Canandaigua, for plaintiffs-respondents-appellants Northup.

Winchell, Macken & Goldwater, Rochester (Richard H. Connors, Rochester, of counsel), for defendant-respondent Gage.

Before McCURN, P. J., and KIMBALL, WILLIAMS, GOLDMAN, and HALPERN, JJ.

PER CURIAM.

Judgments and orders affirmed with costs to plaintiffs-respondents.

All concur, except HALPERN, J., who dissents and votes for reversal and for granting a new trial.

HALPERN, Justice (dissenting).

In my opinion, there are two errors in this case which require reversal:--first, the court did not correctly charge the substance of section 81, subd. 12 of the Vehicle and Traffic Law, with reference to the duty of motorists approaching or passing a school; second, the court erred in holding that that section was applicable to this case at all.

The infant plaintiff, a girl 14 years of age, was riding on the rear seat of a motorcycle owned and operated by the defendant Gage, when the motorcycle collided with an automobile owned and operated by the defendant-appellant Ulmer. The accident took place at dusk, about 7:30 p. m., on October 11, 1955 on Route 245, a State highway, just outside the village of Rushville in Yates County. The infant plaintiff was injured in the collision and an action was brought on her behalf by her father as guardian ad litem for her injuries and a separate action was brought by the father for medical expenses and loss of services. The jury returned a verdict in favor of the plaintiffs against the defendant-appellant Ulmer but the jury found no cause of action as to the defendant Gage.

The infant plaintiff had asked the defendant Gage, who was visiting her family, to give her a ride on his motorcycle. He agreed to do so and, with the infant plaintiff on the rear seat, he proceeded south down Route 245 toward the Middlesex Valley Central School, about 8/10ths of a mile away, with the intention of turning around at the school and returning home. The school was closed; no activities of any kind were in progress there. It was Gage's intention merely to use the school road or driveway as a convenient place in which to turn around.

The defendant Gage testified that he saw the car of the defendant-appellant Ulmer behind him but he nevertheless started to turn to the left to enter the school road or driveway, without giving any signal of his intention to do so. The motorcycle ran into the side of the Ulmer car, which was apparently then engaged in passing the motorcycle on its left. The accident took place in the center of the highway; neither vehicle was in the school driveway.

The defendant-appellant Ulmer testified that, at the time of the accident, he was driving about 50 miles per hour, which was the speed limit in the area.

As the photographs in evidence show, the school was located out in the open country, several hundred feet east of the highway. The side or end of the school building was nearest the highway. The front of the building faced the school road which ran off to the east of the highway at right angles to the highway. This road was sometimes referred to as a driveway but it was paved as a road and it was the same width as the State highway. There was no sidewalk leading from the school to the State highway. The only sidewalk from the school led to the intersecting road or driveway. In view of the physical situation, it is questionable whether a motorist driving along the highway at this point could properly be regarded as approaching or passing a school within the meaning of section 81, subd. 12 of the Vehicle and Traffic Law (Rosenstrom v. North Bend Stage Line, 154 Wash. 57, 280 P. 932) but for the purpose of this appeal, I shall assume that the motorist was chargeable with approaching or passing a school.

Section 81, subd. 12 requires the driver of an automobile approaching or passing a school, to 'proceed with extreme care' and with the automobile 'under control', provided that the authorities 'have legible and visible signs posted to warn drivers of their approach' to the school. There was a sign about 500 feet north of the school driveway reading 'School Ahead Slow'.

In his charge, the trial judge made no reference to the language of section 81, subd. 12 but concentrated solely upon the presence of the sign. He said that signs 'are placed there to be obeyed, and when they are not obeyed that violation constitutes an infringement of the provisions of the Vehicle and Traffic Law of this state'. He subsequently charged that the violation of the statute constituted negligence as a matter of law.

While the Trial Judge did not use the word 'slow' in his charge, the jury had before it a photograph of the sign and the uncontradicted testimony that the sign contained the word 'slow'. When the Judge's charge is read in the light of this evidence, it is apparent that, in effect, the jury was instructed that it was the duty of the defendant-appellant to drive his car slowly as he approached the school and that if he did not do so, he was guilty of negligence as a matter of law. This was tantamount to a direction of a verdict against the defendant since concededly the defendant was not driving slowly at the time of the accident and had not slowed up prior to that time.

The court's charge thus distorted the meaning and effect of section 81, subd. 12. The question was not whether the defendant had obeyed the sign; the sign was only a warning of the approach to the school required by section 81, subd. 12. The question (on the assumption that section 81, subd. 12 was applicable at all) was whether the defendant had obeyed the statutory direction to drive with 'extreme care' and with his vehicle 'under control'. Driving with extreme care does not necessarily require one to drive slowly nor does it necessarily require one to reduce his speed. What constitutes extreme care depends entirely upon the circumstances. One may comply with that standard while continuing at an unabated speed, if there is no apparent danger in sight and if none of the surrounding circumstances indicate the need for slowing down or for driving at a lower rate of speed.

The nature and effect of the sign are governed by the provisions of the Manual of Uniform Traffic Control Devices promulgated by the State Traffic Commission on April 28, 1948, to take effect September 1, 1948 (N. Y. Off. Comp. of Codes, Rules and Regulations [4th Cum.Supp.] pp. 1126-1323). The manual classifies traffic signs into three major classes,--regulatory signs, warning signs, and guide and information signs. Regulatory signs are in a series given the designation 'R' or 'P' followed by a number. Warning signs are in a series designated 'W'. The school sign of the type here involved, indicating the approach to a school and containing the word 'Slow', is a warning sign, designated as sign 'W 96' Ibid., p. 1175; see also 8th Cum.Supp., p. 675).

As the manual explains, the sign is a warning sign and not a regulatory sign. The word 'Slow' is merely used as a word of caution or warning; it has the status of a recommendation only. There is no duty to 'obey' a warning sign as such. In this respect, the sign is wholly different from a regulatory sign life one fixing a specific speed limit, a sign forbidding turns in the highway or a stop sign requiring a complete stop at highway intersections ( §§ 95-b, 95-c and 95-d of the Vehicle and Traffic Law). A common example of a warning sign is a sign recommending a specified reduced speed at a sharp curve (Manual, pp. 1181, 1191-1192). There are various provisions in the statute making a failure to obey a regulatory sign a violation of law but there is no such provision as to a warning sign.

The failure to act in accordance with a warning sign is to be taken into account in determining whether the driver was chargeable with common-law negligence or contributory negligence or with a violation of any relevant statute of which the driver was given warning by the sign. But the failure to take the action recommended by the warning sign is not of itself a violation of statute.

The court's charge cannot be upheld by invoking subdivision 6 of section 88, which requires compliance 'with any lawful traffic regulations displayed in any highway'. This subdivision was superseded as to State highways outside of cities and villages by the enactment of article 7 of the Vehicle and Traffic Law, creating the State Traffic Commission and vesting sole control of State highway signs in the commission and specifying the effect of signs erected under the authority of the commission (Vehicle and Traffic Law, §§ 95 to 95-k; People v. Town of Yorktown, Sup., 36 N.Y.S.2d 83; 1941 Op.Atty.Gen. 235). Furthermore, subdivision 6 of section 88 applies only to 'traffic regulations' displayed on signs, i.e., regulatory signs; it does not apply to a sign which is merely a warning sign (cf. 57 N.Y.St.Dept.Rep. 256).

The court therefore erred in treating the word 'Slow' on the sign as an independent speed regulation and charging the jury that it was the duty of the defendant to obey the language of the sign and that the failure to do so constituted a violation of the Vehicle and Traffic Law.

Furthermore,...