Opinion
January 25, 1943.
In an action to recover damages for personal injuries, the complaint was dismissed at the close of plaintiff's case. From an order granting defendants' motion to dismiss the complaint and from the judgment entered thereon, plaintiff appeals. Order and judgment of the County Court of Westchester County, reversed on the law and the facts and a new trial ordered, with costs to appellant to abide the event. The accident happened at the intersection of Farragut avenue and the Saw Mill River parkway. The truck of the corporate defendant was being operated in an easterly direction on Farragut avenue. Plaintiff was traveling south on the inside lane of the parkway. From the testimony offered by plaintiff, the jury could have found that plaintiff had the right of way and that, when his automobile was twenty-five feet north of the intersection, the truck of the corporate defendant was some fourteen feet from the point of contact. Even if it be assumed that the operator of corporate defendant's truck obeyed the ordinance and came to a full stop before entering upon the parkway, nevertheless, the jury might have found that when he reached the westerly side of the parkway plaintiff's car was so near that it was entitled to the right of way, and that the operator of the truck should have waited and permitted him to pass. Close, P.J., Carswell, Johnston, Adel and Taylor, JJ., concur.