Shirley v. Larkin Co.

• Decision Date: 25 November 1924
• Citation: 145 N.E. 751,239 N.Y. 94
• Parties: SHIRLEY v. LARKIN CO.
• Court: New York Court of Appeals Court of Appeals

239 N.Y. 94

145 N.E. 751

SHIRLEY

v.LARKIN CO.

Court of Appeals of New York.

Nov. 25, 1924.

Action by Oswald Shirley, an infant, by Mabel Shirley, his guardian ad litem, against the Larkin Company. From a judgment of the Appellate Division (208 App. Div. 833, 203 N. Y. S. 953) affirming a judgment on a verdict for plaintiff, defendant appeals.

Judgments reversed, and complaint dismissed.

Appeal from Supreme Court, Appellate Division. Fourth department.

Frank G. Raichle and Robert H. Mahaney, both of Buffalo, for appellant.

Frank J. Fitzpatrick, of Buffalo, for respondent.

HISCOCK, C. J.

This is an action to recover damages claimed to have been caused by a collision between two automobiles at a street intersection, and the appeal will be decided by the interpretation and application of that provision of the General Highway way Traffic Law (Consol. Laws, c. 70, § 12, subd. 4) which enacts as follows:

‘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 traffic officers are stationed they shall have full power to regulate traffic.'

Plaintiff is the only witness on his side who gives an account of the collision, and his testimony, which is not always entirely intelligible, varies from time to time. Taking it as an entirety, however, it seems to come to this. He was driving in a Ford sedan easterly on a street running east and west. The defendant's truck was running northerly on a north and south bound street, which intersected the first one mentioned. Plaintiff says that he was driving on the southerly side of the street at a speed of 12 or 15 miles an hour, and that as he approached the westerly line of the north and south bound street he slowed down to about 8 miles an hour, and thence continued to the point of collision, which apparently was near the southeast corner of the area of intersection of the streets. He saw the defendant's truck when it was 30 or 40 feet southerly from the south line of the street on which he was traveling. The width of the street which he was crossing was a little more than 30 feet, and the distance from where he first saw defendant's truck to the point of collision was practically the same as the distance of the truck from said point of collision. He did not look at the truck again after he first saw it, although he was proceeding to cross the street upon which it was traveling, and although, as he testified, the truck was traveling ‘fast.'

[1] In View of the fact that the distance traveled by each to the point of collision was about the same, this evidence that the truck was traveling fast is probably inaccurate, and in fact it is more in plaintiff's favor to accept the evidence of a disinterested witness for the defendant that it was traveling at the rate of about 10 miles an hour. This rate would be about the same as that at which plaintiff says that he was traveling, and would bring the cars together as they did come together. It is also said by this disinterested witness that the collision was caused by plaintiff trying to run around the front of defendant's truck, and not having time to do it. But, of course, this evidence must yield so far as necessary, to plaintiff's version.

[2] Therefore, taking plaintiff's evidence, we have a person approaching a street intersection and seeing a car approaching on the other intersecting street at a point...