Spinelli v. Licorich

Per Curiam.

This in an action for damages for personal injuries suffered by the plaintiff December 15, 1963 when he was struck by a car owned by one defendant and operated by the other. The evidence indicates that when plaintiff started to cross this uncontrolled intersection (i.e., without traffic lights) at St. Ann’s Avenue and East 150th Street, where the accident occurred, northbound traffic on St. Ann’s Avenue was stopped by a traffic signal at 149th Street and St. Ann’s Avenue. After partially completing his passage he looked again, observed northbound traffic still unmoving and continued his journey. All witnesses agree the block from 149th Street to 150th Street is a very short block. The defendant estimated it at five-car lengths, roughly 40 to 50 feet, and others at approximately 100 to 150 feet. The defendant estimated his speed at 15 miles per hour. This would be about 22 feet per second. The defendant first testified on direct examination that his car was “ a little ways past the excavation” when first he saw the plaintiff, but on cross-examination amended it to say he was right at the excavation. According to the testimony of the police officer plaintiff was lying on the east side of St. Ann’s Avenue next to a parked car and approximately 10 to 15 feet distant from defendant’s car. Defendant testified that while stopped for the traffic light he had a clear unobstructed view up to Westchester Avenue (one block north of 150th Street), yet never saw the plaintiff until immediately prior to the impact.

Defendant’s testimony appears unreliable in other respects. In view of the distance traversed by plaintiff prior to the impact, had defendant looked, as he testified, he must at some time have observed this plaintiff prior to the occasion involving the accident. Although this accident happened between 7:00 and 7:30 p.m. on December 15, 1963, defendant remembered the street lights coming on only when he went to get the police after the accident. Nevertheless, he was purportedly driving with his regular bright lights for city driving. Moreover, at the trial he insisted that there was room for his car, a row of parked ears, and a third car, while at pretrial he had stated that the street was only two lanes wide, including parked cars. He conceded that he had swung to the right of an obstruction on a single lane road, while a car ahead of him had passed on the left. The jury might well have inferred that he was trying to pass the car preceding him on its right, in violation of basic rules of the road.

Since this Avas an uncontrolled intersection plaintiff, a pedestrian, crossing at a crosswalk had the right of way (Traffic Regulations of the City of New York, § 41[a]). The evidence raised questions of fact for the jury which preclude any determination that plaintiff was guilty of contributory negligence as a matter of laAV. Nor, on this record, can we conclude that the verdict, as found, Avas against the weight of the evidence.

There was very slight, if any, basis for any grounding of a charge of negligence on the part of plaintiff upon section 41(c) of the Traffic Regulations of the City of New York. But at any rate the refusal so to charge, if error at all, was at most harmless error for the court did charge as to plaintiff’s duty and responsibility.

The judgment appealed should be affirmed, with costs and disbursements to respondent.