Opinion
May 22, 1935.
Appeal from Supreme Court of Erie County.
Alfred L. Hetzelt, for the appellant.
__________________, for the respondent.
Present — SEARS, P.J., TAYLOR, EDGCOMB, THOMPSON and CROSBY, JJ.
A question of fact was presented as to the negligence of the defendant and the contributory negligence of the plaintiff, and the verdict was not against the weight of the evidence. When the defendant turned to his left and drove into the intersecting street, the oncoming car in which the plaintiff was a passenger could have been found by the trier of the fact to have been within a short distance to his right and approaching the intersection at a rapid rate. Under these circumstances the defendant's action in driving into the intersecting road but a short distance ahead of the rapidly approaching car in which the plaintiff was a passenger presented a question of fact for the trier of the fact as to the defendant's negligence. The contributory negligence of the plaintiff was also clearly a question of fact. ( Nelson v. Nygren, 259 N.Y. 71.)
Judgment of the Special Term reversed and judgment of the City Court of Buffalo affirmed on the law, with costs in this court and in the Special Term.