Mallory v. Haynes

The’ [plaintiff sues for negligence whereby his motorcycle and defendants’ motor car collided. The plaintiff’s version is that, when driving his motorcycle northerly on the right-hand side of a highway through a small village, he attempted to turn towards the west into a state road that intersected the highway at a right angle, and that his vehicle collided with the motor car of the defendants, which was being driven on the state road from west to east. The plaintiff complains of excessive speed and negligent driving, or, to quote his words as a witness, that the default of the defendant was that he “did not turn out and slow down.”

The weight of the evidence upon this feature of the case is that the plaintiff made a comparatively short turn of the corner into the normal course of the defendants’ motor car, when it was the plaintiff’s duty to turn to the right of the center of the intersection. Subdivision 3, § 332, Highway Law (Consol. Laws, c. 25); section 326, Id. The defendant testifies that he was driving his motor car a little to the right of the center of the highway, if anything, and that when he first saw the plaintiff, about 3 car lengths away, he “pulled” his car to the right immediately, to within about 4 feet of the curb. He is corroborated as to the line of his travel by his son and by two women, all passengers in the car, and by several witnesses, both of plaintiff and defendant's, who examined the tracks of the car immediately after the accident.

There is no proof as to the speed of the defendants’ motor car at the time of the collision or immediately before it. The plaintiff could not estimate it, although he testified that while he went 30 feet the defendant traveled 171, which would make the defendant’s speed about 57 miles an hour. Of the plaintiff’s witnesses, Haviland, who saw the motor car when it was about 600 feet from the place of collision, says that the speed' then was 30 miles an hour. Block, wdio did not watch the car as it approached the corner, testifies that, when he saw it, it was going “fast.” Defendants’ witness Ballard, who heard the whir of the motor when the car was 600 feet from the point of collision, judged that the speed at that time was at the rate of 30 miles an hour. The defendant testifies that he had been driving fast, as there was an open and a clear road, but that, as he approached the intersection of the streets, he had slowed down his car, because he intended to pass over the rough crossing over the railroad tracks, both because of this roughness and because there was an engine coming down from the south, that he had applied the brakes also, as the grade was downwards, and that he increased the application when he saw the plaintiff. He is corroborated as to the roughness of the crossing

However fast the defendant drove his motor car, even 600 feet away from the crossways, it was but natural that he would reduce the speed as he neared an intersecting street wherein were laid railroad tracks over which he intended to cross, and especially when his view was somewhat limited and he had reason to believe that a locomotive engine was near at hand. There is no proof of his omission to take such ordinary precautions for his own safety, and there is proof that he did taire them. There is no proof to show that the plaintiff was other than a man of normal faculties, which were then in normal condition. We are not satisfied that, either upon the issue of excessive speed or of negligent driving, the plaintiff upheld the burden of proof, and therefore we must grant a new trial.

Judgment and order reversed, and new trial granted; costs to abide the event. All concur.