The opinion of the court was delivered by: KNIGHT
Town of Amherst, a municipal corporation of Erie County, New York, and its insurance carrier sue defendant to recover property damages under the Federal Tort Claims Act, 28 U.S.C.A. § 931.
The evidence at the trial disclosed that early in the morning of December 13, 1945, on Main Street in the Village of Williamsville, within the plaintiff town, a collision occurred involving the town's automobile driven east by its police lieutenant and a panel truck owned by the United States and being driven west by a radio engineer of the Civil Aeronautics Administration.
The statute on which this action is based adopts 'the law of the place where the act or omission occurred.' This would be the New York Vehicle and Traffic Law, Consol. Laws, c. 71, which provides in part as follows:
'Sec. 82: 1. When in the performance of duty the following vehicles shall have the right of way: * * * policies * * * but this shall not relieve the driver or owner of any such vehicle from liability for injuries inflicted in consequence of the arbitrary or careless exercise of this right.'
'Sec. 82: 5. The vehicle having the center line of the highway on its left shall have the right of way. In meeting both vehicles shall keep to the right, and this without regard to the center line of the highway. Slowly moving vehicles must be kept as near to the curb as practicable.'
The police lieutenant was driving 'in the performance of duty', responding to a fire alarm. The radio engineer, after eating a meal and drinking three bottles of beer, was on his way home.
Garrison Road enters Main Street from the south. The radio engineer was driving west on Main Street and intended to turn left into this intersecting road. The collision happened before he reached it. Just before the collision he had turned to his right and the police lieutenant had turned to his left.
The police lieutenant testified that he saw the panel truck approaching him on the south side of Main Street about two city blocks distant. He then sounded his rotary siren and reduced his speed to about 15-20 MPH. As he neared Garrison Road and the panel truck going west was still on the south side of the highway and about 75 feet from the police car, he again sounded the siren. He testified:
'This car kept coming towards me. Q. Slow or fast? A. No, I wouldn't say he was going fast, but he was approaching me so that I made a sharp turn to the left and stepped on the gas to get away from this car, and the driver of the other car did the same thing, and that is where we met head on. * * * He turned to the right while I turned to the left * * * about the same time.' He said the highway at this place was about 40 feet wide.
On cross-examination the police lieutenant, who had been called as a witness for plaintiffs, said:
'Q. Did this other car turn to the right at the same time that you turned to the left? A. Yes, that is right.
'Q. Did you notice him turning to the right as you turned to the left? A. No, I didn't notice him then.
'Q. When did you first know that he apparently had swung to the right and that you were meeting? A. Just when we met.'
'Q. Why couldn't you turn into Garrison on the right? A. Because I was ...