RALPH S. BALDWIN, an Infant over the Age of Fourteen Years, by WINFIELD H. BALDWIN, His Guardian ad Litem, Respondent,
THE LOCOMOBILE COMPANY OF AMERICA, Appellant.
REARGUMENT of an appeal by the defendant, The Locomobile Company of America, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 16th day of May, 1910, upon the verdict of a jury for $7,000, and also from an order entered in said clerk's office on the 14th day of June, 1910, denying the defendant's motion for a new trial made upon the minutes.
Stephen Van Wyck [Henry W. Goddard with him on the brief], for the appellant.
Henry M. Dater [George F. Elliott and Jay S. Jones with him on the brief], for the respondent.
On October 6, 1906, the American Automobile Association was conducting a speed contest upon certain specified highways in Nassau county in connection with a prize offered by William K. Vanderbilt, Jr., to be competed for by motor vehicles representing America and foreign countries. It was being conducted with the consent of the board of supervisors of said county. Defendant had entered a car in the said competition, which was operated by its employee. A part of the course was over a road which was fifty feet in width, known as the Jericho turnpike. The racing cars proceeded northerly along this road until they reached another road intersecting it at right angles. Toward the right this road led to Huntington and toward the left to Roslyn. The western portion of this road which led toward Roslyn was seventy feet wide. At this point it was necessary to make a sharp turn from the Jericho turnpike into the Roslyn road. To the north of this road there was another road fifty feet wide extending toward Oyster Bay. The easterly and westerly lines thereof were a short distance to the west of the corresponding lines of the Jericho turnpike, so that the Oyster Bay road, although nearly so, was not exactly a continuation thereof. A vehicle coming north in the center of the Jericho turnpike could pass into and along the Oyster Bay road without at all altering its course. During the progress of the race and toward the close thereof, the car entered by defendant and operated by its employee in attempting to make this sharp turn was deflected
from the course and ran into the opening of the Oyster Bay road for a short distance, striking plaintiff and inflicting upon him serious injuries. From a judgment entered upon the verdict of a jury awarding him compensation therefor, and from an order denying a motion for a new trial, this appeal is taken.
There is a conflict of evidence as to the exact place of the accident and whether defendant's car left the course at all, as to the manner of the happening thereof and whether the car 'skidded' and deflected from its course or came into collision with plaintiff because he with others had crowded over the line of the highway in their anxiety to obtain a good view of the contest. There is evidence, however, which the jury have accepted as credible from which negligence in the operation of the car could be found. Assuming this, we think that plaintiff has failed upon the other branch of the case. His testimony is somewhat conflicting, but taking that view thereof most favorable to him, we think that his contributory negligence is affirmatively established.
At the time of the accident he was between fifteen and sixteen years of age. He resided in Norwalk, Conn., and came to the scene of the accident with his father and other relatives the night before the race was to take place for the express purpose of being a spectator thereof. He was somewhat familiar with the use of automobiles and knew the tendency of cars going round a curve at a high rate of speed to 'skid' or deflect from the course. He had observed during the progress of the race that every car as it passed round this curve had 'skidded' more or less and had turned up the road, and he estimated that he had seen this happen during this particular race about a hundred times. When he arrived at the course he selected as his point of observation a position on a horse block on the northeast corner of the road to Oyster Bay and the Roslyn and Huntington road. From the fact that the easterly line of the Oyster Bay road was a little to the west of the corresponding line of the Jericho turnpike, this was doubtless a most desirable place from which to witness the contest, since the spectator looking south could see the cars approaching for a long distance down the turnpike and could also witness the skill of the operators in making the sharp turn into the Roslyn road. But it was also one of the most dangerous positions in case a car
did 'skid' or deflect from the course while making the turn, and particularly was this the case if one moved a short distance to the west of this horse block and into the roadway of the Oyster Bay road. Plaintiff not only knew of this danger from his own experience, but had been cautioned by his father about going over on the Oyster Bay road at all and had been told by him not to stay there because it was dangerous. Notwithstanding this, shortly before the accident he left his father, crossed the Oyster Bay road and went to the shop of the Diamond Tire Company. The purpose of his going there does not appear, but whatever it may have been, it was accomplished and he was returning to join his father on the corner where the horse block was situated. While so doing, a warning was given that a car was coming up the Jericho turnpike preparatory to making the turn. He looked and saw defendant's car coming four or five hundred feet up the road. Notwithstanding that he saw it approaching at a high rate of speed, notwithstanding his knowledge of the dangers of the situation, notwithstanding the caution that had been given to him of the danger of being in the Oyster Bay road at such a time, he proceeded on his way without paying any further attention to the car, and when about half way across the road was struck and injured.
Plaintiff's evidence was contradictory as to the distance that he was north of a line in continuation of the northerly line of the Roslyn road at the moment when he was struck. In his bill of particulars he states the distance to be from six to ten feet; in his testimony he places it at twenty feet. There were other people standing in the road. At one time in giving his evidence he stated that he saw the flags waving and started to go out so that he could see the car, and passed two or three lines of people in getting up nearer the front of the crowd. At another time he stated that he was crossing the Oyster Bay road very nearly in the center of the crowd standing within the lines thereof, but that the crowd parted when it saw the car coming, so that at the time of the accident he was on the edge thereof. Whatever his exact position may have been, according to his own testimony he ...