Tremaine v. Joline — 145 N.Y.S. 46

Majority

p. 46

TREMAINE v. JOLINE et al.

(Supreme Court, Appellate Term, First Department.

December 30, 1913.)

Headnote

Street Railroads (§ 99*)—Injuries to Persons on Tracks—Contributory Negligence. Where the driver of an automobile turned on the street car track and continued toward a rapidly approaching car, turning off when the car was close to him, he was guilty of negligence; and the owner cannot recover for injuries to the automobile, because of collision with the car, which struck the automobile when it crossed a few feet in front of it.

[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. §§ 209-216; Dec. Dig. § 99.*]_

p. 47

Appeal from City Court of New York, Trial Term.

Action by Harry B. Tremaine against Adrian H. Joline and another, as receivers of the Metropolitan Street Railway Company. From a judgment upon a directed verdict for plaintiff, defendants appeal. Reversed, and complaint dismissed.

Argued December term, 1913, before SEABURY, GUY, and BI-JUR, JJ.

Masten & Nichols, of New York City (A. H. Cole, of New York City, of counsel), for appellants.

Bertrand E. Pettigrew, of New York City (Walter L. Glenney, of New York City, of counsel), for respondent.

This is an action to recover damages to an automobile, alleged to have been caused through the negligencevof the servants of the defendants. Plaintiff’s chauffeur, while operating a large automobile on Madison avenue, turned on the south-bound track and continued toward a rapidly approaching south-bound car. When the car and the automobile were close together, the chauffeur turned onto the north-bound track and was struck by the north-bound car. When the automobile was turned onto the north-bound track, the north-bound car was within a few feet of the automobile. The accident was obviously the result of the negligence of the plaintiff’s chauffeur. The carelessness and recklessness of the chauffeur is apparent from his own testimony, as well as from the testimony of several other witnesses in the case.

Judgment is reversed, with costs, and complaint dismissed, with costs. All concur.