Opinion
March, 1935.
The plaintiff Claribel Wilson was driving the car of her husband, the plaintiff George A. Wilson, on a State highway; and a collision occurred where the State road was intersected by a narrow dirt road which was little used, somewhat hidden and inconspicuous. No intersecting signs were posted, and there was nothing to indicate an intersection except the roads themselves. Plaintiff had the right of way. The plaintiff-driver had been over the State road only six or seven times in her life, and did not know of the existence of the dirt road, and did not observe it on the day in question until about fifteen feet therefrom. The defendant drove out of the dirt road onto the State road, and a collision occurred, the left side of the plaintiff's car coming in contact with the right side of the defendant's car. The speed of plaintiff car was thirty-five miles an hour, that of defendant's car was twenty. The plaintiff's was injured, and the car of the plaintiff-owner was damaged. Neither driver sounded a horn, or gave any other signal on approaching the intersection. Defendant urged subdivision 1 of section 67 Veh. Traf. of the Vehicle and Traffic Law on the question of plaintiff's contributory negligence. The plaintiff-driver sued for personal injuries, and her husband, the plaintiff-owner, sued for loss of services of his wife, and damage to his car. At the close of all the evidence the court dismissed the complaints of both plaintiffs on the merits, and gave judgment against them. Before any appeal was taken, the plaintiff-driver, wife of the plaintiff-owner, died. The wife's administrator was substituted, and he made a motion to amend the judgment striking out the provision "on the merits." This motion was denied, and the administrator appeals from the judgment and from the order denying the motion. The plaintiff-owner, George A. Wilson, appeals from a judgment on the merits against him. The appeal of the administrator from the order denying the motion to amend the judgment is dismissed; and the appeal of the administrator from the judgment against the deceased plaintiff Claribel Wilson is reversed on the law, with costs. The order and judgment dismissing the complaint on the merits against George A. Wilson is reversed on the law, and a new trial granted, with costs to appellant to abide the event. Hill, P.J., McNamee, Crapser, Bliss and Heffernan, JJ., concur.