#### Richard J. Clarke, as Administrator, etc., of Richard J. Clarke, Jr., Deceased, Respondent, *v.*William Woop, Appellant.

Second Department,

December 5, 1913.

Motor vehicles — collision between automobile and bicyclist — failure to observe rules of the road —negligence and contributory negligence —turning to left to. avoid accident — failure to stop automobile.

Bicyclists and drivers of motor ears are governed by the rules of the road applicable to the drivers of vehicles.

Thus, where a bicyclist twelve years of age continued to ride on the left side of the road on which a motor car was approaching in full view from the opposite direction, and maintained that position until the motorist in order to avoid a collision turned to the left, and the bicyclist was killed owing to the fact that he turned to the right at the same moment, there can be no recovery, for the decedent was guilty of contributory negligence.

The fact that a vehicle is on the wrong side of the road raises a presumption of negligence, and a violation of the law of the road is competent on the question of due care.

But the driver of a vehicle is justified in going to the wrong side of the road in order to avoid a collision, and hence the act of the motorist in swerving to the left in an attempt to avoid striking the decedent was not negligence.

*438Where the evidence shows that the decedent saw the defendant’s automobile and that there was nothing at any time to obscure his view, or divert his attention, or to prevent him taking the right side of the road, the defendant was not negligent in failing to bring his car to a standstill.

Appeal by the defendant, William Woop, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 18th day of June, 1913, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 16th day of June, 1913, .denying the defendant’s motion for a new trial made upon the minutes.

*Edgar L. Ryder,*for the appellant.

*Murray G. Jenkins [Douglas J. Miller*with him on the brief], for the respondent.

Jenks, P. J.:

In Croton avenue in the village of Ossining the plaintiff’s son, twelve years old, riding a bicycle to the west, came to collision with defendant’s motor car- traveling to the east, and was killed. The plaintiff complained of negligent driving, and gained the verdict. I advise that the judgment and order be reversed and that a new trial be granted, costs to abide the event.

A cyclist is subject to the general rule of the road (S. & R. Neg. [6th ed. Street], § 653) and the movement of a motor car is governed generally by rules applicable to other vehicles. *(Mark*v. *Fritsch,*195 N. Y. 282.) The plaintiff’s version is that the lad was riding on *“*his right hand side ” of the road and that the defendant crossed from his right side of the road. The version of the defendant is that he was driving on his right side of the road, that the lad approached the motor car upon his wrong side of the road, and that the defendant turned his car to his left only to avoid collision and to afford a wider space between his right hand and the curb, for the lad to pass on the side that he seemed bent upon, but that at that instant the lad suddenly turned to his right so that the vehicles collided. Of the five witnesses called by the plaintiff upon this feature of the case who testify to the contrary, four did not see the accident; *439of these one saw nothing of the lad before the accident, and one testifies that the lad was on the left-hand side coming down and on the same side as the ascending motor car, which was on the right-hand side going up. Beside the defendant, his wife and other members of his family who were in’the motor car, nine witnesses testify for the defendant that the lad approached the car upon his wrong side of the road. These witnesses, as well as those called by the plaintiff, were apparently respectable, intelligent people, and wholly indifferent to the parties, save the brother of the lad and defendant’s witness Tillotson, who was his friend and a passenger in the car. The point of view of the accident, of the defendant’s witnesses, was superior to that of the witnesses called by the plaintiff, or at least their attention was directed more sharply to the accident. I think that the preponderance of the evidence shows that the lad approached close to the motor car and from some distance, upon his wrong side of the road.

The circumstance that a vehicle is on the wrong side of the road is sufficient to raise a presumption of negligence. (Thomas Neg. [2d ed.] 2346; S. & R. Neg. *supra,*§ 649.) And a violation of the law of the road is competent on the question of due care. *(Nadeau*v. *Sawyer,*73 N. H. 70.) But it is also well settled that the use of the wrong side of the road may he justified by the circumstances. (Text hooks, *supra.)*But the plaintiff’s intestate was not within the limitation. For the preponderant evidence is that he approached the motor car on his wrong side of the road when there was no obstacle to a course upon the other side or to his turning into that side at any time, and that he continued his course with the motor car in plain view and without heed until an instant before collision. I think, then, that the plaintiff did not offer proof sufficient to show the absence of contributory negligence on the part of a lad who was an experienced rider. *(Pick*v. *Thurston,*25 R. I. 36, cited in S. & R. Neg. *supra,*§ 653, note.)

The learned counsel *for*the respondent contends that the jury could have found from the evidence that the defendant was on the left-hand side of the road at the time of the collision. This is true, but such finding, so far as it was justified *440by the evidence, could not import that the defendant was traveling for any space or for any considerable time upon his wrong side of the road, and, so far as justified, is consistent with the preponderant proof that the defendant diverted his course from his right side of the road towards the wrong side in view of the approach of the lad, and that within a moment the collision followed. In other words, the jury would not have been justified in finding otherwise than that' the defendant originally bore his course upon his right side of the road and almost at the instant of the collision first turned towards the wrong side. Thus, even if the location of the car at the instant of the accident unexplained raised a presumption of negligence, I think that the presumption was lifted by evidence that explained such location, and that the defendant was entitled to invoke the limitation to the law of the road expressed with reference to a manager of a vehicle in Shearman and Redfield on Negligence (§ 649): “Nor is he even justified in a rigid adherence to his side, if by going a little on the other side he could avoid a collision,” citing authorities, *inter alia, O’Maley*v. *Dorn*(7 Wis. 236), *Turley*v. *Thomas*(8 Carr. & P. 103). (See, too, Huddy Automobiles, 91.) The defendant’s testimony that he veered his course after his signals were apparently unavailing to avoid a threatened collision, is supported by some of the witnesses. Thus, the witness Lane testifies: “The car turned across to give the boy the road and he did not take it, he then attempted to take where he should have been. If the car had kept its course, its regular course, I expect it would have struck the boy. * * * If he kept on his course and the car on its course they would have come head on.” It seems to me that in the face of imminent peril the defendant attempted to avoid it, but that he encountered it because the lad too late sought the course that he Should have taken and' have kept from the outset. Even if the defendant erred in judgment in this crisis, I fail to find proof of his negligence in his driving of the car.

The learned counsel for the respondent contends that the defendant was negligent because he did not stop his car. I do not agree. The defendant was an experienced driver ascending a steep incline at a speed described by a witness for the *441plaintiff as “ moderate ” and by the defendant and other witnesses as not in excess of eight or ten miles an hour. The evidence indicates that the lad saw the car, and that there was nothing at any time to obscure his view, to divert his attention, or to prevent his taking his way to the right of the car, or even to turning in that direction as he approached for passage. Under these circumstances the defendant in the exercise of due care was not bound to bring his motor car to a standstill. The verdict is not satisfactory either as to the contributory negligence or the negligence.

Burr, Carr, Rich and Stapleton, JJ., concurred.

. Judgment and order reversed and new trial granted, costs to abide the event.