Cieri & Sandler, Elimira, for plaintiff-appellant (Anthony B. Cieri, Elmira, of counsel).
[141 N.Y.S.2d 12] Mandeville, Buck, Teeter & Harpending, Elmira, for defendant-respondent (Charles B. Swartwood, Elmira, of counsel).
Before BERGAN, J. P., and COON, HALPERN and IMRIE, JJ.
BERGAN, Justice Presiding.
This case turns on the instruction given to the jury on the intersection right of way rule. Plaintiff Anne Stryzinski was driving her Buick car in a southerly direction in North Main Street, Elmira, on August 22, 1952. The defendant Arnold's Chrysler car, driven by Marion Johnson, was proceeding easterly on West Center Street. At the intersection of the two streets there was a collision. As they approached
the intersection, therefore, the defendant's car was on the right of the plaintiff's car. The verdict of the jury was for the defendant.
There are some differences between the parties on the relative nearness of the two cars to the intersection as they approached it and on their respective rates of speed; but there can be little doubt if the jury took the defendant's proof of the facts leading to the accident, which, in the light of their verdict, it may be assumed here that they did, they would be justified in applying against the plaintiff the right of way rule in full vigor.
This is a rule which in naked language, without attempt at statutory definition, simply gives to the vehicle on the right at an intersection 'the right of way'; and imposes on 'every driver' on the left the requirement that he shall 'grant' such right to the other vehicle. Vehicle and Traffic Law, § 82, subd. 4.
Mrs. Stryzinski testified on direct examination that when she first saw defendant's car in West Center Street it was 100 feet away; that she entered the intersection at 20 miles an hour; that when she entered the intersection defendant's car was two car-lengths away, and that the collision occurred by the defendant's car striking the right side of her car when she was well across the center line of West Center Street. On cross-examination she said she did not see defendant's car again after her first view of it when it was 100 feet from the intersection.
The driver of the defendant's car, Mrs. Johnson, testified she observed plaintiff's car for the first time when it was 80 or 90 feet from the intersection and she was 30 or 38 feet from the intersection; that the Stryzinski car was going between 40 and 50 miles an hour, and that she was going only 20 miles an hour. She applied her brakes but continuing into the intersection, 'as I stopped I was almost through the intersection'. The car she was driving was struck, she said, after she was stopped, on the left fender. All this presents a question of fact in a typical frame.
Although there was no exception taken by the plaintiff to the main charge, the requests made by the plaintiff for further instructions on the right of way rule cannot be reviewed in isolation, but must be examined with the instructions in the main charge kept in mind. For that reason it [141 N.Y.S.2d 13] is helpful to read in text what the court said about the right of way rule. First he read to the jury exactly the language of the statute. Then he said:
'The last section I have just read to you is known as the 'right of
way' rule. As applied to this case, it means that as the two autos approached the intersection Mrs. Johnson, who was on the right of Mrs. Stryzinski, had the right of way, and that Mrs. Stryzinski did not have the right of way. However, the right of way rule is not inflexible or absolute. It should be applied with reason. The rule of mutual forbearance and reciprocal courtesy sums up the duty of both of these drivers as they approached this intersection. Both drivers should approach an intersection with automobiles under control. The driver on the left, in this case Mrs. Stryzinski, must be on the lookout for autos coming from her right, and must keep in mind that under ordinary circumstances an auto coming from her right would have the right of ...