Edith M. Peters, Respondent, v. Joan N. Cuneo, Appellant

Edith M. Peters, Respondent, v. Joan N. Cuneo, Appellant. Second Department, January 17, 1908. Negligence — injury by motor vehicle—rule of the road — judgment for plaintiff affirmed.' " Action to recover for personal injuries. The plaintiff, emerging from behind a moving wagon, was struck and injured-by an automobile coming in the opposite direction. Evidence examined and held, that a verdict for the plaintiff was not against the weight of the evidence. It is proper to charge that the rule or custom of the road- is to pass to the left on overtaking and to the right on meeting a -vehicle, if the position of the parties be such as tabling the rule into operation. Appeal by the defendant, Joan 27. Cuneo, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of February, 1907, upon the verdict .of a jury for $2,500, and also from .an order entered in said clerk’s office on the 20th day of February, 1907, denying ■ the defendant’s motion for a new trial made upon the minutes. Ferdinand E. M. Bullowa, for the appellant. Thomas F. Magner [Samuel Walker with him on the brief], for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The plaintiff was going east along the right hand side of Jamaica avenue behind a big meat truck, decorated with branches and flags, and carrying a picnic party. As she turned out from behind it to the left, to go close along side of it and pass it, she testifies that she saw the defendant coming with her motor car directly toward her fast on the same side of the middle of the street, and about 300 feet away ; that the defendant continued on toward her until the motor car came near the heads of the horses of the cart, when the plaintiff in alarm turned to the left to go to the left of the motor car, whereupon the defendant turned her motor car to the right, and thus ran into the plaintiff. She is corroborated in this. The defendant testifies that the motor car was in the middle of the road,.and as it got to the line of the horses’ heads the plaintiff suddenly appeared for the first time from behind the truck, whereupon the defendant turned to the right to avoid her, and again to the left when she saw that the plaintiff was crossing the street diagonally. She was corroborated in this. On the whole, the verdict may not well be said . to be against the weight' of evidence. The learned trial judge correctly charged that the rule or custom of the road is to pass to’ the left on overtaking and to the right on meeting — that is assuming the-position of the parties to be such as to bring the rule into use (Wright v. Fleischman, 41 Misc. Rep. 533). A passage in the charge that it was the duty of the defendant to turn to the right “upon seeing an approaching .vehicle ” is criticised. While the rule does not require one to turn to the right so soon as all that„ the mistake does not seem to have done harm, and was not excepted to. Though the case was briefed and argued with unusual clearness and ability by the counsel for the defendant (who, by the way, did not try the case), she has not made any reversible error manifest. Persons in . their place of security and power in motor cars should remember that their rapid and close approach may make a person think he or she is about to be run over, when that may not be the case. They should turn out seasonably. ' The judgment and order should be affirmed. Present — Jenks, Hooker, Gaynor, Bioh and Miller, JJ. Judgment and order unanimously affirmed, with costs.