Summary
In Green v. Baltuch, the defense was that a large automobile running at a great rate of speed turned in ahead of defendant's automobile in order to pass it, and forced defendant to run his car on the sidewalk.
Summary of this case from Fleming v. HartrickOpinion
December 13, 1921.
Appeal from City Court of New York, Trial Term.
Action by Frederick Green against Max Baltuch. From a judgment for defendant on a verdict, plaintiff appeals. Reversed, and new trial ordered.
Isaac Dobroczynski, of New York City (Jacob Zelenko, of New York City, of counsel), for appellant.
Fred H. Rees, of New York City (Theodore H. Lord, of New York City, of counsel), for respondent.
Before LEHMAN, WHITAKER, And DELEHANTY, JJ.
The plaintiff sues to recover damages for personal injuries caused by defendant's automobile while being driven by him. Plaintiff was standing on the sidewalk at the corner of Thirty-Fifth street and Madison avenue, about 20 feet from the curb, when he was struck by defendant's automobile and suffered the injury complained of, The only excuse offered by the defendant for allowing his car to run on the sidewalk is that, while defendant was proceeding south 2 to 3 feet from the curb, a large automobile running at great speed turned in ahead of defendant in order to pass, and forced defendant to run his car on the sidewalk.
We do not think the evidence in behalf of defendant was sufficient to overcome the presumption of negligence. The evidence does not show that the defendant was in such a dangerous position as would justify him in driving upon the sidewalk to escape injury from the car which he stated turned in front of him in the act of passing. We think it discloses a want of experience and carelessness on the part of defendant.
The evidence shows that defendant was from 2 to 3 feet from the curb; that he did not know how fast he was going, but he was going "very slowly." The car which he claims passed in front of him was going three as fast as defendant was, The defendant's witness Mandel testifies that defendant's car was going 7 to 8 miles an hour; that the car which passed him was going 38 or 40 miles an hour. The defendant's car going three times as fast passing him in front. A turn to the right a car couple of feet would have avoided the accident, or had the defendant promptly applied his brakes his car would certainly have stopped before it went on the sidewalk, The defendant claims at one part of his testimony that his car skidded. This could not be. The car could not have slid up over the curb. Had it skidded with force, it would probably have been turned over when the wheels struck the curb.
The defendant also testified that his car turned completely around and went upon the sidewalk. This evidence is inconsistent with the evidence of the other witnesses as to the position of the car on the sidewalk.
Taking the entire evidence of the case, plaintiff's and defendant's we are of the opinion that is shows the accident was the result of the negligence of the defendant.
The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.