
    Ida Gautier, Respondent, v. Gustav Lange, Jr., Appellant.
    (Supreme Court, Appellate Term, First Department,
    March, 1915.)
    Automobiles — action to recover damages for injury to — charge to jury. Where in an action to recover damages for injuries to plaintiff’s automobile which collided with defendant’s automobile while both were traveling in the same direction the jury might have found, as contended by defendant, that plaintiff's automobile was to the left of the centre of the highway, that defendant desiring to pass sounded a horn from a position 200 yards in the rear until plaintiff’s car was overtaken and that there was barely room to pass on the left, the defendant was entitled to have the jury charged that plaintiff was obliged as soon as practicable after knowing of the presence of the car of defendant to turn and yield him the road, and, further, that if the jury were satisfied that the accident would not have happened if plaintiff had turned out he could not recover, and a refusal to so charge calls for the reversal of a judgment in favor of defendant.
    Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, borough of Manhattan, fifth district.
    James T. Brady (Ralph Barnett, of counsel), for appellant.
    Lewis F. Glaser, for respondent.
   Shearn, J.

Appeal by defendant from a judgment entered on the verdict of a jury and from an order denying defendant’s motion for a new trial in an action to recover damages for injuries to plaintiff’s automobile caused by a collision with defendant’s automobile while both were traveling in the same direction on a highway in Pennsylvania.

The law was not given to the jury correctly on the relative rights and duties governing the management of automobiles in the situation presented.

Plaintiff’s claim is that her automobile was on the extreme right of the highway, which was from twenty to twenty-five feet wide, and that while traveling fifteen miles an hour the left front hub of her automobile was struck by the right rear wheel of defendant’s automobile which came up from behind without warning and passed at the rate of thirty miles an hour.

Defendant’s claim is that plaintiff’s automobile was to the left of the center of the highway; that for a considerable time defendant had been traveling behind plaintiff’s car in the dust; that defendant desired to pass the slow-going vehicle and sounded a horn from a position 200 yards in the rear until plaintiff’s car was overtaken; that there was barely room to pass on the left even leaving the roadway and scraping along a stone wall on the extreme left; and that plaintiff’s car, instead of yielding any room, which was entirely practicable, edged over farther to the left and thus caused the collision.

Defendant’s counsel requested the court to charge: “ That plaintiff was obliged as soon as practicable after knowing of the presence of the car of the defendant, to turn and yield him the road.” The court responded: “ There is no such absolute right. The rule is that a slow-going vehicle should give way to a quick-going vehicle. But that does not mean that a man who is lawfully in the highway must pull aside and let a man go by him in a fast automobile at any rate of speed the following vehicle chooses to assume.” The court also refused to charge ‘ ‘ That if the jury is satisfied that this accident would not have happened if the plaintiff had turned out of this road' upon reasonable notice by the defendant, the plaintiff cannot recover.”

If the plaintiff’s car was on the extreme right, these requests to charge would not have been applicable. If, however, as the jury might well have found, the relative position of the automobiles was as defendant contended, the requests were very pertinent, and the jury should have been given the law governing this situation. Such law is well settled. “ If the position of the forward car in the center of the highway does not leave such room for passage, then it must upon request or equivalent notice, if practicable and safe, so turn aside as to leave such room for passage.” Mark v. Fritsch, 195 N. Y. 282, 284; Adolph v. Central Park, N. & E. R. R. Co., 76 N. Y. 530, 534.

While the defendant might have been held negligent in attempting to pass in so narrow a space at such a rate of speed, nevertheless in determining this the jury should have understood that, assuming defendant’s version to be true, defendant had a right to expect the plaintiff to turn to the right and yield sufficient room for defendant to pass as soon as it became evident that defendant was endeavoring to pass. The jury must have understood from the charge and from the court’s refusal to charge as requested that there was no real obligation resting on plaintiff to yield any room even if entirely practicable and that defendant’s liability was to be determined upon the assumption that he had no right to expect the plaintiff to yield him more room. In other words, if the jury found from the evidence that the relative position of the automobiles in the roadway was as testified to by defendant’s witnesses, the instructions as to how to deal with this situation were contrary to the settled law governing, namely, The fundamental principle of conduct is that of reasonable care and accommodation measured by the immediate circumstances of each case and exercised by each traveler- for the purpose of affording to the other his just and reasonable rights in the highway.” Mark v. Fritsch, supra.

There were other errors justifying a reversal, notably the court’s refusal at first to charge that plaintiff must show freedom from contributory negligence, upon the assumption that the Labor Law amendment applied, but these need not be considered.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.

Guy and Pendleton, JJ., concur.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  