Opinion
November, 1929.
Judgment, and order as resettled, affirmed, with costs.
Young, Kapper and Hagarty, JJ., concur, being of opinion that the court correctly charged that defendant's chauffeur had the statutory right of way but that whether he carefully exercised the right given him by the statute was the question of fact to be determined by the jury, and the jury were properly charged in connection therewith;
See General Highway Traffic Law, § 11, subd. 2; Id. § 12, subd. 4; now Vehicle and Traffic Law, § 81, subd. 2; Id. § 82, subd. 4. — [REP.
The question as to which car had the right of way was one of fact for the jury in view of the differing versions of the plaintiff and the defendant's witness with reference to the respective distances the two cars were from the intersection, and the similarly disputed question involving the speeds of the two cars as they approached the point of intersection. ( Shuman v. Hall, 246 N.Y. 51.) This was not a case where on undisputed facts it could be said as a matter of law that one car or the other had the right of way under the statute. The court erroneously took that question away from the jury.