Opinion
May 18, 1971
Appeal (1) from a judgment of the Supreme Court in favor of plaintiff, entered May 25, 1970 in Tompkins County, upon a verdict rendered at a Trial Term, and (2) from an order of said court, entered August 14, 1970, which denied defendant's motion to set aside the verdict. Respondent testified that while driving south on Route 96, he attempted to pass appellants' truck, proceeding in the same direction, and that the latter vehicle crossed the center line forcing a collision between the vehicles. As a result, respondent sustained personal injuries and property damage for which the jury awarded him $13,500. Appellants contend that the verdict was against the weight of the evidence, and that the trial court committed reversible error in its charge. Respondent testified that he pulled into the northbound lane when approximately 150 feet behind appellants' vehicle and that, observing no blinking turn signal, he then attempted to overtake it and pass. Allegedly, as he came within five yards of the truck, "it started to turn across the center line" with its front end almost completely in the northbound lane. Respondent contends that he applied his brakes and attempted to veer to the left, but his car went straight ahead on the snow-covered pavement, striking appellants' vehicle. Appellant Smith testified that he applied his turn signal several hundred feet before reaching the intersection; that respondent was approximately 300 feet behind him at the time; that appellant was "up to the center line" but never crossed it. Thus, questions of fact were created which the jury could properly resolve in favor of respondent. There was sufficient evidence upon which the jury could conclude that appellant Smith failed to use his turn signal, did not observe respondent's vehicle, and was further negligent in not keeping to the right of the center line. Similarly, the jury could find that respondent was not guilty of contributory negligence in attempting to pass appellant, since no turn signal warning was given by appellant Smith, and that in attempting to steer away from appellants' vehicle when the danger arose, respondent exercised all the care that could be expected of a reasonably prudent driver. Appellants contend, citing several cases, that respondent failed to sound his horn before attempting to pass appellants' vehicle, and that this constituted negligence. There is no merit to this argument. The cases cited by appellants were decided under subdivision 7 of section 81 of the former Vehicle and Traffic Law which was repealed prior to the accident herein. Although under certain circumstances a motorist may be required to sound a horn in overtaking a vehicle, no such action was required in the instant case since neither version of the accident revealed any circumstance upon which the need for such a warning could be reasonably foreseen. Appellants' contention that the trial court failed to give the jury a clear and concise statement of proximate cause and likewise failed to give a proper definition of negligence and contributory negligence is without foundation. In any event, appellants neither excepted to the charge nor made request for specific charges and are therefore bound by the law of the case. Judgment and order affirmed, with costs. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur.