
    Lincoln Taxicab Company, Appellant, v. John H. Smith, Respondent.
    (Supreme Court, Appellate Term, First Department,
    December, 1914.)
    Automobiles — violation of section 290(3) of Highway Law — action for damages — when exclusion of evidence bearing on accident is error.
    An innocent party injured as a result of the violation of section 290(3) of the Highway Law, which expressly prohibits the operation of a motor vehicle by an intoxicated person, may maintain an action for damages.
    In an action to recover for damages to the taxicab of plaintiff struck at a street crossing by defendant’s motor vehicle which he was driving, evidence that at the time of the accident he was put under arrest in a,n intoxicated condition is material and its exclusion is error. It had a further bearing on defendant’s negligence by reason of the testimony of a disinterested witness who testified that defendant’s car was going in a “ wabbly ” condition at from fifty-five to sixty miles an hour, that the taxicab was near the centre of the 'street when struck by defendant’s car, and that no collision would have occurred had defendant directed his car to the rear of the taxicab.
    Appeal by the plaintiff from a judgment, rendered in the Municipal Court, of the city of New York, borough of Manhattan, first district, in favor of the defendant, in a trial without a jury.
    Charles M. Kiefer, for appellant.
    Goldstein & Goldstein (Abraham Cupton, of counsel), for respondent.
   Cohalan, J.

In an action to recover damages for negligence, plaintiff set up two causes of action: (1) It sues for damages, alleging that the defendant so negligently operated his automobile as to injure the plaintiff’s taxicab; and (2) it claims damages because the defendant, while in an intoxicated condition so carelessly and recklessly operated his machine as to injure the plaintiff’s taxicab.

The accident occurred at about one-thirty o’clock in the morning at Broadway and Sixty-ninth street. Plaintiff’s taxicab was crossing Broadway at Sixty-ninth street when it was struck by the defendant’s touring car going south on Broadway. The defendant was driving his own car with his chauffeur sitting by his side, and evidence was excluded by the court that at "the time the defendant, who had been placed under arrest, was in an intoxicated condition. Under the provisions of the Highway Law, section 290, subdivision 3, the operation of a motor vehicle by a person in an intoxicated condition is expressly prohibited, and an innocent party injured in consequence of a violation of this statute is entitled to his civil remedy for damages. Massoth v. Delaware & Hudson Canal Co., 64 N. Y. 532. The evidence was material on this ground, and it had a further bearing on the defendant’s negligence by reason of the disinterested testimony of the witness, Burt. He testified that the touring car was going down Broadway in a “ wabbly ” condition, and that it was running at the rate of from fifty-five to sixty miles per hour; that the taxicab was going east across Broadway, and that when it was near the center of the street it was struck by the defendant’s car, and that no collision would have occurred if the defendant had directed his car to the rear of the taxicab.

Seabury and Bijur, J. J., concur.

Judgment reversed, new trial ordered; costs to appellant to abide event.  