
    August Alby, as Administrator, etc., of Angelo Alby, Deceased, Appellant, v. Joseph B. Krupa, Respondent.
   Defendant’s automobile ran out of gasoline while going northerly up a hill toward Auburn on the Ithaca road. He stopped the car on the right shoulder. Attempting to turn his car to permit a return down the grade, he backed it against his left, the westerly guardrail, with the headlights pointing in a northeasterly direction across the road. There was sufficient space for a car to pass upon the easterly lane and shoulder. The plaintiff’s intestate and two other young men who had visited places of amusement, were riding on the front seat of the ear going southerly. It was traveling not less than forty miles an hour just before it collided with defendant’s car. The driver was not warned of the danger or admonished as to speed by either of his companions. Contributory negligence was a question of fact. Even though the car in which the intestate was riding had the right of way on the westerly lane, it was the duty of the driver to use reasonable care to avoid a collision. If he failed in this, he was negligent. (Ward v. Clark, 232 N. Y. 195; Shuman v. Hall, 246 id. 51; Kosowsky v. Coller, 227 App. Div. 740; Wallace v. D’Aprile, 221 id, 402; 224 id. 774.) Judgment unanimously affirmed, without costs. Present — Hill, P. J., Crapser, Bliss, Sehenck and Foster, JJ.  