
    Oliver C. Berckhemer, Respondent, v. Empire Carrying Corporation, Appellant.
    First Department,
    May 5, 1916.
    Motor vehicles — negligence — rules of the road — turning from side street into avenue, city of New York — collision between motor truck and motorcycle — proof establishing negligence.of defendant — contributory negligence of plaintiff—erroneous charge — error cured by subsequent charge.
    The driver of a motor vehicle in the city of New York who, coming westerly through a cross street, desires to make a left turn southerly into an avenue should make a wide turn, pass to the right of the center of the street intersection and reduce his speed to not more than four miles an hour.
    Where the driver of a motor truck violated both of the rules aforesaid and turned into the avenue with a high rate of speed, with a result that there was a collision between his vehicle and a motorcycle, the violation of the rules is sufficient to charge him with negligence.
    Where on making such sudden turn the driver of the motor truck found himself in close proximity to the motorcyclist and both were going in the same direction side by side, and after a short distance the motorcyclist turned suddenly and ran into the truck, it was error for the court to charge that the motorcyclist was not guilty of negligence as a matter of law if the negligent driving of the motor truck had placed him in a sudden situation of excitement and confusion, if there was no evidence whatever that the plaintiff was confused or lost control of his machine.
    So, too, it was error to refuse to charge at the defendant’s request that the jury might find the turning of the motorcycle which brought it into collision with the truck was negligent no matter what the cause, there being no evidence that the plaintiff did not have his motorcycle under control.
    However, the errors aforesaid were cured where the court subsequently, at the request of the defendant, charged that if the plaintiff swerved without exercising care, or because he did not have his motorcycle under control when the unexpected movement of the defendant’s truck tookplace, the verdict must be for the defendant.
    McLaughlin", J., dissented, with memorandum.
    Appeal by the defendant, Empire Carrying Corporation, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of November, 1915, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 15th day of November, 1915, denying defendant’s motion for a new trial made upon the minutes.
    
      Lyman A. Spalding, for the appellant.
    
      Leon Sanders, for the respondent.
   Soott, J.:

The action is for damages resulting from a collision on June 13, 1915, between a motorcycle and a motor truck, plaintiff having been the rider of the motorcycle and defendant being the owner of the truck.

The facts deducible from the testimony and evidently found by the jury were that plaintiff, who was an experienced motorcyclist, was riding up Washington avenue, in the county of Bronx, on the right hand and proper side of the roadway about six feet from the curb. He had been going at a high rate of speed, but says that he had slowed down to a moderate rate just before the accident happened. Defendant’s truck was coming westerly through One Hundred and Sixty-fifth street. When the truck reached the corner of Washington ¿venue and One Hundred and Sixty-fifth street it made a sharp turn to the southwest into Washington avenue running close to the southeasterly corner, and going at a much higher rate of speed than the city ordinance permits any vehicle to go in turning a comer. It was the duty of the driver of defendant’s truck, if he desired to turn to the left into Washington avenue to make a wide turn, passing to the right of the center of the street intersection and to reduce his speed to not more than four miles an hour. (Highway Law [Consol. Laws, chap. 25; Laws of 1909, chap. 30j, § 286, subd. 3, as added by Laws of 1910, chap. 374; Code of Ordinances of the City of New York, chap. 24, art. 2, § 11, subd. 6; Id. § 17, subd. 2.) The evidence tends to show that the driver of the truck violated both of these rules and so the jury must have found. Such violation is sufficient to charge him with negligence. (Shields v. Pugh & Co., 122 App. Div. 586; Donnelly v. City of Rochester, 166 N. Y. 315.)

This action on the part of the driver of the truck created a situation in which there was imminent danger of a collision between the motorcycle and the truck, and for the creation of this situation the driver of the truck appears to have been solely to blame. Both parties, evidently appreciating the danger of collision, attempted to avoid it by turning sharply to the northwest, and ran along in parallel or nearly parallel courses, for about forty or fifty feet until they were near the northwesterly corner of One Hundred and Sixty-fifth street and Washington avenue, when plaintiff’s motorcycle suddenly turned north and ran into the track. From this collision resulted plaintiff’s injuries.

Thus we have this state of affairs: A dangerous situation created solely by the negligence of defendant’s servant; an avoidance of immediate danger by the quickness both of plaintiff and defendant’s servant resulting in a state of affairs from which serious .results might have been' averted, and then a collision resulting directly from the northerly swerve by plaintiff. All this, of course, took a much shorter time than it does to tell it, the distances traversed by the two vehicles after they had turned to the northwest and before the collision occurred, being probably not much more than forty feet.

That the defendant’s servant was negligent and that his negligence led up directly to the accident is indicated by the evidence, or, at least, the jury might so find and did find. The accident would probably not have happened, however, notwithstanding the truck driver’s negligence, if plaintiff had not swerved from a northwesterly to a northerly direction, and the serious question was presented whether or not the swerve constituted contributory negligence. The court charged the jury at some length on this subject suggesting that the act of defendant’s driver in suddenly turning into Washington avenue might have “so upset the plaintiff and his control of the machine that he either failed to exercise exactly the right judgment when he made the second swerve, or whether he lost control of his machine, due to the confusion and excitement of the moment.” He further charged that “if that second swerve to the north, if that failure to keep on to the left up One Hundred and "Sixty-fifth street, was due to such excitement and confusion as might ensue from what occurred, if you find that it did occur as he [plaintiff] said, then the plaintiff would not be guilty of negligence as a matter of law for the second swerve to the north.”

There was no evidence, even from his own lips, that plaintiff was in the least confused or flustered, or that he lost control of his cycle, and the defendant, with reason as we consider, excepted to those portions of the colloquial charge from which we have quoted.

Defendant’s counsel also requested the court to charge the jury that it had “the right to say that the second turning to the north was negligent, as a matter of fact, no matter what the cause,” and further, that “ there is no proof, no direct evidence, that the plaintiff did not have his motorcycle under control just before the accident happened. ” Both of these requests were refused by the court, and defendant duly excepted. In this, as we think, error was committed, and if the case had rested there we should have felt impelled to order a new trial;

The defendant, however, persisted and asked the court to charge “ that if the plaintiff swerved north without exercising proper care or because he did not have his motorcycle under proper control, when the unexpected movement of the defendant’s mail wagon took place, if it did take place, that their verdict must be for the defendant. ” To this request the court replied: “Ihave already charged them that, and I charge it again.”

In our opinion this charge, the last word on the subject heard by the jury before it retired for deliberation, correctly stated the law applicable to the question and effectually cured any error that may have been committed in the colloquial charge, or in the refusal to charge the earlier requests made by the defendant. Such errors thereby became unimportant and immaterial.

lío other question in the case appears to require extended consideration. The judgment and order appealed from are, therefore, affirmed, with costs.

Clarke, P. J., Smith and Davis, JJ., concurred; McLaughlin, J., dissented.

McLaughlin, J. (dissenting):

I am unable to concur in the opinion of Mr. Justice Scott. The fact is uncontradicted that the motorcycle on which the •plaintiff was riding ran into the defendant’s automobile, and not the automobile into the motorcycle. The plaintiff’s own testimony shows that had he exercised the care which the law imposed upon him, for his own safety, the accident would have been avoided. He testified that when he first saw the automobile he was between thirty and thirty-five feet from it; that he then had the motorcycle under control and was running about ten miles an hour; and that when running at that rate of speed, it could be stopped within ten or fifteen feet. He made no attempt to stop, but what is perfectly apparent is that he attempted to run around the automobile and in doing so ran into it. Even if it be assumed, therefore, that defendant’s driver was negligent, it did not entitle plaintiff to recover, because his injuries were due, at least in part, to his own negligence.

I think the judgment should be reversed and a new trial ordered.

Judgment and order affirmed, with costs.  