Lovas v. International Railway Co.

Headnote

Lovas v. International Ry. Co., 173 App. Div. 1003 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 1, 1916, affirming a judgment in favor of plaintiffs entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. The complaint alleged that while plaintiffs’ intestate was crossing Main street at the bisection of High .street in the city of Buffalo, and was in the use of due care, a trolley car operated by the employees of the defendant was brought into collision with the bicycle on which he was riding, through the negligence of the operatives of the said trolley car, and that by-reason thereof plaintiffs’ intestate received the injuries which resulted in his death. The sole question presented to this court was whether the trial court erred in admitting proof of the

following ordinance of the city of Buffalo which had not been specifically pleaded in the complaint: “The driver or person having charge or control of any vehicle shall, before turning the corner of any street or turning out or starting from or starting at the curb line of any street, first see that there is sufficient space free from other vehicles or persons to permit such- turning, stop or start to be safely made, and to then give a plain warning or signal of his intention to turn, stop or start. Motormen on street cars must sound the gong before starting.” It was contended that a failure to observe this ordinance was one of the items of defendant’s negligence.