Melanie Parodi, Appellant, v. George Tilford, Respondent

Melanie Parodi, Appellant, v. George Tilford, Respondent. Second Department, March 4, 1910. Highway — negligence — collision between vehicles causing 'injury to third person—joint tort feasors. . . '' Where the driver of a truck was proceeding in a line of vehicles parallel to a.street car, but behind the front of the car and. so close thereto that when the car turned on a switch to reach another track the pole of the truck was- thrown against the plaintiff’s‘carriage to his injury, the negligence was that Of the.truck driver in failing-to keep his distance from the-car. Ev.en if the motorman were negligent, it does not excuse the truckman’s .fault.. Appeal by the plaintiff, Melanie-Parodi, from a judgement Of the Municipal -Court of the city of New York, borough of Brooklyn, in-favor of the defendant, rendered on the 14th day of April, 1909. Henry W. Goddard, for the appellant. Edward J. Walsh, for the respondent. [MAJORITY — Thomas, J.:] Thomas, J.: Plaintiff’s carriage, in Whitehall street, New York city, stopped to allow teams to come from a boat in slip, and thus clear the approach thereto. A car going northerly on a westwardly or southbound track, and turning easterly on a crossover switch to reach the easterly or north-bound track, hit .with its rear step the front wheel of defendant’s truck, and violently swung the pole thereof to the westward, so tiiat it passed through the window of plaintiff’s carriage, with resultant injury to plaintiff. Hence the rear of a car swinging easterly hit the easterly front wheel of a north-bound truck, and forced it into a carriage on its westerly side. Who is at fault ? The uncontradicted evidence of the motorman is that the truck was four feet behind the front of the car at starting, and this relation was maintained for 100 feet, and, so far as appears, until the accident happened. During this time their courses were parallel until the car swung to the right, which threw its rear to the left one and a half to two feet, and the truck was hit because it was too close to the car. If the car was ahead at starting it had the-right to start, and as the.truck driver knew that the car must make the swing that it did make, it was his duty to keep off sufficiently to avoid the effect of it. The only two ways of avoiding a collision were by the truck driver driving further toward the westward, or the motorman slacking or stopping his car to let the truck precede him, thereby yielding the way. The truck driver could not well stop, as he headed the procession of vehicles coming from the boat. The car by stopping would have delayed all the cars behind it, and such stopping would have been ineffective unless it had remained so stopped until the entire train of wagons had passed. So the obvious and only alternative was for the truck to keep off. The omission to do so was negligence, and upon the evidence presented the court should have so found. Even if the motorman was negligent, this did not palliate the truckman’s fault. The judgment of the Municipal Court should be reversed and a new trial ordered, costs to abide the event. Hirschberg, P. J., Woodward, Eich and Carr, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.