#### James G. Clark, Respondent, *v.*The New York Railways Co., Appellant.

(Supreme Court, Appellate Term, Second Department,

December, 1912.)

Automobiles — running on city street — action for damage for collision with trolley car.

One running an automobile on a city street must have it under such reasonable control as to be able to promptly stop it should occasion require.

Where, in an action to recover damages to plaintiffs automobile resulting from its collision with a trolley car at a street intersection, it appears that the chauffeur, with knowledge that he was approaching a situation of obvious danger due to the obstruction on both streets and the restricted and limited roadway space for vehicular travel, was going at the rate of ten miles an hour, he ■was negligent as matter of law, and the complaint should be dismissed.

Appeal from a judgment rendered in favor of plaintiff.

James L. Quadkenbush (Charles M. McGill, of counsel), for appellant.

Kindleberger & Robinson (E. Crosby Kindleberger, of counsel,) for respondent.

*Per Quriamv.*

Action to recover for damages to. plaintiff’s automobile resulting from a collision between the automobile, then west bound, and a north bound Lexington avenue trolley car, at the intersection of Eighty-fourth street. *647Plaintiff has judgment and defendant appeals therefrom, and brings up for review also the order denying a motion for a new trial.

The automobile, six feet wide, wás running at the rate of ten miles an hour and, hence, as conceded on the trial, covering fourteen and two-thirds feet a second. The chauffeur, with knowledge of the existing conditions and the operation of the street surface railway, was approaching a situation of obvious danger, due to the obstructions on the avenue and the street, and the restricted and limited roadway space for vehicular travel, viz.: girders, four feet eight inches high, on Lexington avenue two feet beyond the easterly curb and eight feet five inches easterly from the north bound track,, with a space between the girders of eleven feet three inches for travel; on his left a fenced inclosure, seven feet four inches high, on the south side of Eighty-fourth street and extending into the roadway of that street thirteen feet eight inches from a point two feet from said easterly curb of Lexington avenue and thus preventing a view of the north bound cars until the corner of the fence was reached.

On the trial there was no dispute as to the physical conditions, but a sharp conflict was presented as to whether the car hit the gooseneck or front part of the automobile or the automobile struck the running board of the. car at or near its front platform. There was some question as to the speed of the car and whether a warning bell or gong was sounded.

It was and is the duty of one having charge and operation of a vehicle upon a city street to have the same under reasonable control; that control necessarily varies in degree with the circumstances of each case and the physical conditions and hazards present; the character of the vehicle, the manner of its control, and the time necessary to bring it to a stop if an exigency fairly to be apprehended should arise. The greater the danger the higher degree of care required and the more complete control of the vehicle, since the control called for is such as may bring the vehicle to a prompt stop if occasion so requires. Volosko v. Interurban St. R. Co., 190 N. Y. 206, 209.

*648The chauffeur did. not have his automobile under such control; he admitted on the trial that he was going ten miles an hour, so fast that he could not stop between the girders and the track, ’and consequently he was, in our opinion, negligent.

At the close of the whole case defendant moved for a dismissal and also for the direction of a verdict.

Section 1317 of the Code, as amended, after providing for a final judgment to be rendered by the Appellate Term, continues “ When a trial has been before a jury, the judgment of the appellate court must be rendered either upon special findings of the jury or the general verdict, or upon a motion to dismiss the complaint or to direct a verdict.” We, therefore, may render a final judgment upon a motion to dismiss the complaint or to direct a verdict; and, as we have concluded that the chauffeur was negligent as matter of law and that the complaint should have been dismissed at the trial, we should render final judgment upon this appeal and dismiss the complaint, for section 1317 provides that except where it may be necessary to order a new trial the appellate court shall render final judgment upon the right of any or all of the parties according to law. If the justice below had dismissed the complaint, it would have been our duty to affirm upon this record, and it is none the less our duty after verdict to conform to the intent of the legislature and render a final judgment disposing of this controversy.

Judgment and order reversed with costs and judgment ordered for defendant, with costs.

Present: HAnnox, Blackmar and Putnam, JJ.

Judgment and order reversed with costs and judgment ordered for defendant, with costs.