The opinion of the court was delivered by: BYERS
The plaintiffs sue to recover for personal injuries suffered by them on December 10, 1950 at about 6:30 p.m. as the result of a collision between the private automobile driven by Mr. Reynolds, of which all three were occupants and which was in collision with a U.S. Mail truck. This occurred in the intersection of 37th Avenue and 63rd Street in the Borough of Queens, the plaintiffs' car being southbound on 63rd Street, and the defendant's truck being westbound on 37th Avenue.
The case against Shewark was withdrawn at the opening of the trial.
There is agreement that the latter street is 40 feet wide, and the former is 28 feet wide; that there is no traffic light at any of the four corners, or stop sign; and that weather conditions did not contribute to the accident; also that both cars carried lights which were showing.
There is an expectable controversy as to the exact spot in the intersection at which the collision occurred, but the evidence as a whole would be consistent with placing it a little to the west of the north and south center line -- say not to exceed four feet -- and at about the same distance south of the center line of 63rd Street.
Since both drivers testify to observing the approach of the other vehicle at a sufficient distance away to enable him to stop sufficiently to permit of a safe passage ahead by the other car, the question comes down to this: Which one should have stopped, and was it negligent not to?
The three plaintiffs were their own fact witnesses; the defendant called Shewark. The driver of the truck, and Kemme, a disinterested person, as to the happening itself. In addition, there are photographs of the plaintiffs' damaged car which indicate that the left front side was so battered as to render repairs a matter of unjustifiable expense. That of course does not necessarily indicate which vehicle delivered the initial blow; the chances are that the two forces were practically simultaneous in impact, the momentum of defendant's truck being the greater by reason of its size and weight as loaded.
The remaining witnesses for the plaintiffs were Doctors LaRosa and Jacobson as to the injuries of Mr. and Mrs. Reynolds; Costas and Sepe as to photographs; and Reidy who removed the plaintiffs' car in damaged condition to his repair shop.
The defendant called Dr. Urbonk who examined Mr. and Mrs. Reynolds in October, 1952, to determine their then physical condition; and Klen who took the photograph Defendant's Ex. B, and Longman who described the injuries to the mail truck and the cost of repair ($ 53.27). The latter said that the damage started 8 1/2 feet behind the right bumper, and that scrape marks extended 5 1/2 feet; that the right side lower panels were slashed and there was damage to the right rear fender and to the gas tank.
The respective speeds before either vehicle reached the intersection were said to be about 25 M.P.H. and since there is no conflict on this subject, no finding is required, reliance being had in part on Kemme's disinterested testimony. Both he and Shewark agreed that each observed the vehicle of the other as Kemme was moving east on 37th Avenue, and the mail truck west, at about the distance of one block or a little less, from 63rd Street; that they mutually changed their high lights to 'low' according to Shewark, and to 'parking' according to Kemme.
It is a reasonable inference that this change which was requisite to good driving by these drivers may have played some part in what followed, for although Reynolds saw the light of a car approaching from his left as he reached the intersection, it could be argued that if that light was then either 'low' or 'parking' the car would seem to be further away than in fact it was, because the bright lights would have more truly revealed the actual distance.
No such lowering of lights was practiced by Mr. Reynolds, the occasion therefor not having arisen. And since his (plaintiff's) car was observed by Shewark who said it was then 100 feet north of the corner on 63rd Street, he deemed that apparent position to indicate that he, Shewark, had sufficient time to pass safely in front and he proceeded to cross the intersection, with the results above stated.
Since Mr. Reynolds also saw the truck to his left (but not Kemme's car to his right), at a distance he judged to be 150 feet away, he too proceeded into the intersection, having first paused at the corner to read the street sign to confirm his whereabouts and that he was on his correct way to his destination (Queens Boulevard and Sunnyside Avenue).
It will be seen that each driver was aware of the presence and movement of the other car, but their respective estimates of its distance from the intersection, and therefore of the time available for safe clearance, were at best approximations.
Under these conditions, and since neither car was exceeding the 25 M.P.H. speed limit for safe driving, it seems to this court that the plaintiff's car had the right of way within the intent of ...