Opinion
November 22, 1961
Present — Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeals from an order entered on a decision rendered at Trial Term, Supreme Court, Rensselaer County. In a collision between a taxicab of the Star and Strand Taxi, Inc., operated by John McDonald in a southerly direction in Ninth Avenue, Watervliet, and then left to go east in 19th Street, and an automobile operated by Edward C. Diamond in an easterly direction on 19th Street, Diamond, being on McDonald's right, had the right of way. The jury, however, found verdicts against Diamond, in favor of a passenger in the taxi and her husband; and in favor of McDonald and the taxi company in the passenger action against them; and a verdict against Diamond in the action by McDonald, the taxicab driver, against him. These verdicts have each been set aside by the Judge at Trial Term as "contrary to the overwhelming weight of the evidence" and because "they disregard also the statute governing the right-of-way at an intersection". We are of opinion the Trial Term was entirely right in ordering a new trial. The taxi driver, McDonald, testified that he stopped his taxi as he came to the intersection and "backed up so I could see beyond" a truck that was parked; and then said "I could see no one coming". This testimony is incredible; especially in view of the testimony of passengers in the taxi that he went into the intersection without stopping and the testimony of a witness who was standing on the corner that the taxi came into the intersection at a rapid rate of speed and that it made a wide turn and collided with the Diamond car. We agree there should be a new trial. Order unanimously affirmed, with costs to abide the event.