I concur in the result but for reasons other than those assigned in the majority opinion.
In this case, the plaintiffs recovered judgment against both defendants. They were passengers in a car driven by defendant Magee which collided with a fire truck owned by the defendant City of New York in the intersection of 142nd Street and Willis Avenue, borough of The Bronx, city of New York.
There is no question that plaintiffs were entirely free from any fault contributing to the accident.
While it is true that the fire truck had the right of way, despite the red light at the intersection set against traffic *457proceeding in the same direction, it does not follow that the operator of that vehicle was completely relieved from the duty of exercising reasonable care. Assuming arguendo that Magee’s negligence was almost gross, it would not serve to relieve the city from equal liability to the innocent plaintiffs, if its agent was also negligent, although in a much lesser degree.
The right of way rule extended to a fire vehicle by the Vehicle and Traffic Law (§ 82) contains the following limitation: “ but this shall not relieve the driver * * * of any such vehicle from liability for injuries inflicted in consequence of the arbitrary or careless exercise of this right.”
The Traffic Regulations of the New York City Commissioner of Traffic (§ 80) contain a similar provision: “ This section shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the street.”
The trial court in evaluating the testimony of the fireman operating the fire pumper found, “ the driver did not exercise his judgment at all. He did nothing, he did'not look, he did not stop, did not turn.” “ The driver in failing to earlier observe the conditions in One Hundred and Forty-second Street was doing exactly what the statutes and the law says he may not do; he was arbitrarily and recklessly relying on the right of way of the fire apparatus and not exercising care; he failed to look into the one street he should have observed, the one that had the green light, the only source of possible interference; * * * and it was his duty to observe dangers as soon as possible, particularly while passing a red light, knowing as he must that an oncoming driver would rely upon the green signal set for him ’ ’.
The credibility of this witness was in issue. There was conflict in his testimony on the trial as compared with, his testimony in the Magistrate’s Court. While we might reach a different conclusion with respect to the proof adduced at the trial, there was a question of fact and there may be sufficient in the record to sustain the finding of the trier of the facts. (See Lee v. City Brewing Corp., 279 N. Y. 380, 388, and Shea v. Judson, 283 N. Y. 393, 398.) We should not substitute our conclusion for that of the trial court.
The right of way rule does not obliterate the requirement to exercise reasonable care under the circumstances present at the time (Farrell v. Fire Ins. Salvage Corps, 189 App. Div. 795, 800; Muhs v. Fire Ins. Salvage Corps, 89 App. Div. 389; Kosowsky v. Coller, 227 App. Div. 740).
*458While I agree that an error in judgment or “ want of prevision ” does not ipso facto impose liability, a charge of negligence cannot be summarily brushed aside by mere proof that an actor erred in judgment (Van Ingen v. Jewish Hosp., 182 App. Div. 10, 14).
It appears to me, therefore, that we cannot reverse the determination of the court below, and order a new trial upon the ground that the judgment is, as a matter of law, against the weight of the evidence.
The reversal should be predicated upon the ground that the learned court below erred in making inconsistent findings which we cannot correct. These contrary findings deal with the testimony of the operator of the fire truck, and as heretofore stated, his credibility was in question. The court below concluded that the driver did observe intersecting traffic when his vehicle arrived at a certain point, and then in another part of his decision held that the fireman did not look at all. We cannot determine from the record which is correct.
The judgment insofar as the City of New York is concerned should, therefore, be reversed and a new trial ordered.
Peck, P. J., Breitel and Botein, JJ., concur with Bergan, J.; Frank, J., concurs in the result in opinion.
Insofar as the judgment is in favor of all plaintiffs against the defendant the City of New York, it is unanimously reversed and a new trial ordered, with costs to said appellant to abide the event, on the ground that the decision is against the weight of the evidence; insofar as the judgment is in favor of the plaintiff Rita Kirk against the defendant Magee, it is unanimously reversed and a new trial ordered, with costs to said appellant to abide the event, on the ground of excessiveness, unless said plaintiff stipulates to reduce the judgment to the sum of $3,500 in which event that part of the judgment in favor of the plaintiff Rita Kirk against the defendant Magee, as so modified, is affirmed, without costs; the judgment against the defendant Magee is otherwise affirmed. Settle order on notice.