
    Robert Mallory, Respondent, v. John L. Haynes and Fred Haynes, Appellants.
    Second Department,
    December 24, 1915.
    Motor vehicles — negligence — collision between motorcycle and automobile — proof not justifying recovery.
    Action to recover damages for personal injuries received by the plaintiff who, while riding a motorcycle, came into a collision with the defendants’ automobile at the intersection of two roads. Evidence examined, and held, that a judgment for the plaintiff should be reversed and a new trial granted because he had failed in the burden of establishing the negligence of the defendants.
    Appeal by the defendants, John L. Haynes and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Putnam on the 11th day of March, 1915, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 20th day of March, 1915, denying defendants’ motion for a new trial made upon the minutes.
    
      James E. Carroll, for the appellants.
    
      Morschauser & Mack, for the respondent.
   Jenks, P. J.:

The plaintiff sues for negligence whereby his motorcycle and defendants’ motor car collided. The plaintiff’s version is that when driving his motorcycle northerly on the right-hand side of a highway through a small village, he attempted to turn towards the west into a State road that intersected the highway at a right angle, and that his vehicle collided with the motor car of the defendants, which was being driven on the State road from west to east. The plaintiff complains of excessive speed and negligent driving, or, to quote his words as a witness, the defendant did not “turn out * * * and slow down.”

The plaintiff testifies that he was traveling at 10 miles an hour; that his view as he approached this intersection was shut out by a building on the southwest corner until he came within 20 or 21 feet of the State road; that he began his turn at this distance and that, when he had traveled.30 feet and was within 2 feet over the center of the State road, the two vehicles “hooked together,” “head on.” He saw the motor car when it was 171 feet distant. He testifies that the car, instead of “ swerving ” to the right, swerved to the left. The plaintiff is not corroborated as to the relative courses of the vehicles by any oral testimony. The State road is 29 or 30 feet in width. The plaintiff testifies that he turned the corner within 10 or 15 or 12 feet therefrom. The defendant John L. Haynes testifies that the plaintiff turned at about 6 feet therefrom. The estimate of his son, a passenger in the motor car, is 5 or 6 feet, and that of defendants’ witnesses Ludington and Eastwood, who examined the tracks of the motorcycle immediately after the accident, is 6 and Y feet respectively. Scalla, an eye-witness for the defendants, estimates the distance at 9 feet. The weight of the evidence upon this feature of the case is that the plaintiff made a comparatively short turn of the corner into the normal course of the defendants’ motor car, when it was the plaintiff’s duty to turn to the right of the center of the intersection. (Highway Law [Consol. Laws, chap. 25; Laws of 1909, chap. 30], § 332, subd. 3; Id. § 326.) The defendant testifies that he was driving his motor car a little to the right of the center of the highway, if anything; and that when he first saw the plaintiff about 3 car lengths away, he “pulled” his car to the right immediately, to within about 4 feet of the curb. He is corroborated as to the line of his travel by his son and by two women, all passengers in the car, and by several witnesses, both of plaintiff and defendants, who examined the tracks of the car immediately after the accident.

There is no proof as to the speed of the defendants’ motor car at the time of the collision or immediately before it. The plaintiff could not estimate it, although he testified that while he went 30 feet the defendant traveled 171, which would make the defendant’s speed about 57 miles an hour. Of the plaintiff’s witnesses, Haviland, who saw the motor car when it was about 600 feet from the place of collision, says that the speed then was 30 miles an hour. Block, who did not watch the car as it approached the corner, testifies that, when he saw it, it was going “fast.” Defendants’ witness Ballard, who heard the whir of the motor when the car was 600 feet from the point of collision, judged that the speed at that time was at the rate of 30 miles an hour. The defendant testified that he had been driving fast, as there was an open and clear road, but that as he approached the said intersection of streets he slowed down his car. He testified that he did so for the reason that he intended to pass over a railroad crossing which was rough, and that there was a locomotive engine coming from the south. He testified that he had applied the brakes because he was upon a down grade and that he had increased such application when he saw the plaintiff. He is corroborated as to the roughness of the crossing and the approach of the engine by witnesses called by the plaintiff. He is corroborated as to his reduction of the speed.

However fast the defendant drove his motor car, even 600 feet away from the crossways, it was but natural that he would reduce the speed as he neared an intersecting street wherein were laid railroad tracks over which he intended to cross, and especially when his view was somewhat limited and he had reason to believe that a locomotive engine was near at hand. There is no proof of his omission to take such ordinary precautions for his own safety. There is no proof to show that the plaintiff was other than a man of normal faculties which were then, in normal condition. We are not satisfied that, either upon the issue of excessive speed or of negligent driving, the plaintiff upheld the burden of proof, and, therefore, we must grant a new trial.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

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

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