Opinion
December, 1914.
Charles M. Kiefer, for appellant.
Goldstein Goldstein (Abraham Cupton, of counsel), for respondent.
In an action to recover damages for negligence, plaintiff set up two causes of action: (1) It sues for damages, alleging that the defendant so negligently operated his automobile as to injure the plaintiff's taxicab; and (2) it claims damages because the defendant, while in an intoxicated condition so carelessly and recklessly operated his machine as to injure the plaintiff's taxicab.
The accident occurred at about one-thirty o'clock in the morning at Broadway and Sixty-ninth street. Plaintiff's taxicab was crossing Broadway at Sixty-ninth street when it was struck by the defendant's touring car going south on Broadway. The defendant was driving his own car with his chauffeur sitting by his side, and evidence was excluded by the court that at the time the defendant, who had been placed under arrest, was in an intoxicated condition. Under the provisions of the Highway Law, section 290, subdivision 3, the operation of a motor vehicle by a person in an intoxicated condition is expressly prohibited, and an innocent party injured in consequence of a violation of this statute is entitled to his civil remedy for damages. Massoth v. Delaware Hudson Canal Co., 64 N.Y. 532. The evidence was material on this ground, and it had a further bearing on the defendant's negligence by reason of the disinterested testimony of the witness, Burt. He testified that the touring car was going down Broadway in a "wabbly" condition, and that it was running at the rate of from fifty-five to sixty miles per hour; that the taxicab was going east across Broadway, and that when it was near the center of the street it was struck by the defendant's car, and that no collision would have occurred if the defendant had directed his car to the rear of the taxicab.
SEABURY and BIJUR, J.J., concur.
Judgment reversed, new trial ordered; costs to appellant to abide event.