Opinion
November 23, 1955.
Appeal from Supreme Court, Saratoga County.
At an intersection controlled by a traffic light in the city of Cohoes an ambulance of the neighboring Village of Waterford on an emergency call collided with an automobile operated by Joseph E. Drew. The light was red for the ambulance; green for Drew. The proof is that the ambulance sounded the siren as it approached the intersection. Drew was somewhat deaf; the windows of his car were closed; he did not hear the siren. All other witnesses near enough to hear the siren heard it. The verdict of the jury was for Drew against the Village of Waterford and Raymond Rocque, the ambulance driver, for $15,000. The jury found, quite consistently, that Lloyd Bull and Leo Willi, members of the Waterford fire department rescue squad who were riding on the ambulance were not entitled to recover against Drew. We regard the verdict as being against the weight of the evidence, in respect both of the negligence of the ambulance operator and the absence of contributory negligence of Drew; and for this reason there ought to be a new trial of each of the causes of action. The ambulance had the right of way at the intersection notwithstanding the traffic control light was green for Drew if adequate warning was being given by sounding its siren. (Vehicle and Traffic Law, § 82, subd. 1; § 84; County of Broome v. Binghamton Taxicab Co., 276 App. Div. 438.) Drew, on the other hand, did not look to his right when he entered the intersection; had he looked he would have seen the ambulance; and with an impairment of hearing and his window closed, Drew cut himself off from perception of sounds which might have guided him to safety in the use of the street. His impairment in hearing leaves him in the general position of being required to hear at his peril that which a normal driver would have heard. (Cf. 2 Restatement, Torts, § 289, comment h.) Judgment reversed and a new trial ordered, with costs to abide the event.
The jury determined the degree of Drew's inability to hear normally and, with that in mind, decided that he exercised the care of the ordinary prudent person in entering the intersection with the traffic light green for him. I cannot say that such a finding is contrary to the weight of the evidence on the record in this case. Neither do I believe that the finding, implicit in the jury's verdict, that Rocque, the ambulance driver, was negligent is contrary to the weight of the evidence. The right of way granted the driver of an emergency vehicle sounding a siren is not absolute. He is not relieved from liability if he exercises the right of way arbitrarily or carelessly. (Vehicle and Traffic Law, § 82.) And he may run a red light only if he does so with caution. (§ 84.) There is evidence in this record from which the jury could properly find that the ambulance driver was exercising his right of way carelessly and was proceeding against the red light without caution.