#### James Manion, Respondent, *v.*Loomis Sanatorium, Appellant.

Third Department,

May 6, 1914.

Motor vehicles —action for damages to automobile, caused by collision with wagon which was stopped diagonally across highway — negligence — contributory negligence.

In an action to recover for injury to an automobile it appeared that the plaintiff, coasting on a down grade at about twenty miles per hour, when about 330 feet from a depression at the side of the highway, saw defendant’s teamster coming along a lane toward the highway about 60 feet from the depression; that as the team came out upon the highway the plaintiff blew his horn, at which the teamster looked up and then soon stopped diagonally across the highway, leaving insufficient space for the plaintiff to pass in the rear of the wagon", as he intended; that the plaintiff then endeavored to throw the transmission of his car into *422reverse gear, but was unable to do so because the gear caught; that then, while attempting co pass in front of the horses, the wheels of the automobile fell into the depression, and the car finally struck a telephone pole; that plaintiff was a competent chauffeur, familiar with the highway, and that if the gears had not caught he would have been able to stop his automobile before reaching the wagon.

*Held,*that, in view of the action of the teamster in going upon the highway with a team and wagon, together about twenty-five feet in length, with an approaching automobile in plain sight, and stopping diagonally across the roadway, the beaten part of which was from fourteen to sixteen feet wide, instead of passing over to the proper side of the highway, the question of defendant’s negligence was properly submitted to the jury, and its verdict in favor of the plaintiff was fully justified;

That, in view of the absence of evidence that the transmission gears had ever before caught, the plaintiff was not guilty of contributory negligence as a matter of law.

Smith, P. J., and Kellogg, J., dissented, with opinion.

Appeal by the defendant, Loomis Sanatorium, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Sullivan on the 18th day of June, 1913, upon the verdict of a jury for $200.15, and also from an order entered in said clerk’s office on the 18th day of July, 1913, denying defendant’s motion for a new trial made upon the minutes.

*Carpenter & Rosch [Joseph Rosch*of counsel], for the appellant.

*Ellsworth Baker,*for the respondent.

Lyon, J.:

The only serious' question involved in this appeal is whether the finding by the jury that the plaintiff was free from contributory negligence was against the weight of evidence. On the afternoon of June 30, 1910, the plaintiff was driving a heavy thirty to thirty-five horse power Darracq car in which were seated five other persons, from Liberty on his way westerly to White Sulphur Springs, Sullivan county, N. Y. Soon after leaving Liberty and while plaintiff was passing westerly along a public highway, defendant’s team, driven by defendant’s servant, attached to a heavy lumber wagon, drove out of a lane upon the northerly side of the highway and stopped diagonally crosswise of the highway with the hind wheels in the north *423gutter, leaving no space at the rear of the wagon through which the plaintiff’s car could pass, and leaving a space so narrow in front of the team that in turning out to pass through it the plaintiff ran across a depression upon the southerly side of the road, about 3% feet deep, walled on each side, constituting the entrance to the basement of the barn, ruining the tires upon that side of the car, disarranging the machinery and resulting in the car colliding with a telephone pole which stood within the limits of the highway about 30 feet westerly of the depression. This action was brought to recover the damages to the car upon that occasion, the trial resulting in a verdict for the plaintiff of $200.15, the expense of making the repairs. The plaintiff was a duly licensed chauffeur and a machinist, having at that time had three and a half years’ experience in running and repairing cars. He had run this car, which was of 1904 or 1905 model, for three seasons. The road over which plaintiff was traveling was an improved highway having an average down grade of about six and seven-tenths per cent for about 550 feet easterly of the place of the depression. The plaintiff testified that he first saw the team and wagon coming towards the highway along the lane, which was about 60 feet west of the depression, when he was about 330 feet east of the depression, and that the team was coming upon a walk, and that as the team came out upon the highway the plaintiff blew his horn, at which the driver of the team looked up and then back at the team and soon stopped diagonally across the highway, leaving insufficient space for the car to pass in the rear of the wagon. The plaintiff testified that at the time of starting down the hill he was coasting, with the clutch disconnected and the foot brake applied, at a speed of about twenty miles per hour, which he held until he was within 150 feet or thereabouts of the team, when he slackened his speed and passed the heads of the horses at from twelve to fifteen miles per hour; that as soon as the team stopped across the road he endeavored to reverse his car, which up to that time had been set at high speed, and for that purpose pulled the emergency brake and tried to throw the gear shifting lever into reverse which he could not do as it was a sliding gear transmission and could not be thrown into reverse without throwing it through the other clutches; that as a *424result of plaintiff’s effort to reverse the motion of his car, the transmission caught in the second speed gear and plaintiff was unable to stop the car before reaching the team; that although with the machinery properly working to that end, the car could have been stopped running on that grade at a speed of twenty miles per hour within 100 feet; that on passing over the depression the. car tipped, throwing the plaintiff’s foot off the reverse, letting the clutch in, and that the car being in second speed struck the telephone pole with much force. The plaintiff also testified that he was well acquainted with the highway and knew of the depression, and that he ran as close to the heads of the horses as he could without hitting them, tipping his head sideways so as to avoid the heads of the horses and the pole of the wagon. The speed of the team as it came upon the highway was not given otherwise than that it was at about the gait at which a man would walk. The testimony of the plaintiff is uncontradicted that had the driver of the team kept on, instead of stopping, there would have been ample room for the plaintiff to have passed between the rear end of the wagon and the bank, which the plaintiff testified he expected to do, having for that purpose kept his car along the right-hand side of the road until after the teamster stopped, when, confronted with the emergency, he crossed to the left-hand side and endeavored to pass in front of the team and thus avoid a collision. The defendant did not call the teamster as a witness nor offer any explanation whatever of his absence from the trial. In view of the action of the teamster in passing upon the highway with a team and wagon, together 24 or 25 feet in length, with an approaching car in plain sight, and stopping diagonally across the roadway, the beaten part of which was from 14 to 16 feet wide, instead of passing over to the south side of the highway, which was for him the right-hand side on his way to Liberty, to which he was going, the question of defendant’s negligence was properly submitted to the jury, and its verdict was fully justified by the evidence. Furthermore, it cannot be said that, as matter of law, the plaintiff was guilty of contributory negligence,. barring recovery in view of the absence of evidence that the transmission had ever before caught, or that *425any difficulty whatever had ever before been experienced in reversing the motion of the car; that the plaintiff was an experienced chauffeur and machinist, and thoroughly familiar with this car by reason of having operated it for three seasons, and knew that he could stop it within 100 feet, traveling at the speed of twenty miles per hour, and hence in less than that distance traveling from twelve to fifteen miles per hour, and that the teamster was crossing the road diagonally from the lane headed towards the barn upon the opposite side of the highway, and traveling at a pace which the uncontradicted testimony shows would, had he continued it, have taken him sufficiently far to have allowed the plaintiff by continuing along the right-hand side of the highway to pass in safety in the rear of the wagon. The charge, and responses of the court to the requests to charge, clearly and forcibly submitted to the jury the facts constituting contributory negligence as claimed by the defendant; and following the rendition of the verdict the trial judge denied the defendant’s motion for a new trial. The verdict, as before stated, was simply for the expenses of repairing the car, which the plaintiff did not own but which he was operating that season under an agreement with the owner for a division of profits and by which the plaintiff was to return the oar in as good condition as he took it, necessary wear excepted. The plaintiff is entitled to a trial by jury and doubtless another trial would not change the result. There were no exceptions taken requiring a reversal of the judgment. The judgment and order appealed from should be affirmed.

All concurred, except Smith, P. J., dissenting in opinion, in which Kellogg, J., concurred.

Smith, P. J.

(dissenting):

If an automobile were approaching a railroad crossing, over which was passing a train of cars, at the rate of twenty miles an hour, and without stopping its speed should run into that train, all would agree that the chauffeur was guilty of contributory negligence. If in his reckoning the train had just passed over so that he crossed safely it would still be reckless driving. It is just such driving that makes the automobile almost a public nuisance to all who have occasion to use the *426streets. Assuming that the chauffeur reckoned that the defendant’s lumber wagon would get across the road so that he could pass in safety, a farm hand might well become confused and unwisely stop his horses, and a prudent chauffeur in approaching such an obstacle would have his car under control. It would be a salutary rule to establish that car drivers who indulge in the practice of just grazing moving obstructions, whether they be persons or things, should be well penalized when their reckless calculation misses.

The failure to bring the clutch back to neutral did not in any way affect the driving of the car before the car came to the obstruction. It was only after the chauffeur found himself compelled to dodge around the wagon and in so doing was thrown from his seat, that the failure to get the clutch back to neutral had any effect. In cars with the transmission which this car had there is always a pedal to remove the power from the car so that the brake may be applied effectively. In my judgment the judgment and order should be reversed on account of contributory negligence of the chauffeur.

Kellogg, J., concurred.

Judgment and order affirmed, with costs.