
    Rosalie Mendleson and Others, Appellants, v. Howard Van Rensselaer, Respondent.
    Third Department,
    March 28,1907.
    Negligence — collision between motor car and vehicle — when damages ' excessive — law of the road.
    When in an action to recover damages to á horse and wagon received in a collision with an automobile, it appears that the actual expense of repairing the wagon was twenty-seven dollars and fifteen cents, and that it was in as good- or better condition than formerly, testimony that tlie wagon had shrunk in value from two hundred dollars to fifty dollars is purely fanciful and not worthy of consideration as a basis of . damage.
    Nor can the damage to the horse be based upon its shrinkage in value as a. “ family horse” by reason of its becoming nervous in the neighborhood of automobiles by reason of the accident. The defendant is not required to pay the difference in the value of the horse before and after the accident treating it only as a “ family horse. ”
    It appeared that the plaintiffs were driving their wagon and approaching the intersection of another road into which they intended to turn. On nearing the intersection they failed to keep to the right thereof as required by subdivision O of section 157 of the Highway Law, but turned to the left side of the road.* The defendant, coming from behind, in attempting to pass to the left of the plaintiffs, as required by subdivision B of said act and subdivision i of section 4 of the Motor Vehicle Law, struck and injured the horse and wagon. On the question of the defendant’s liability.
    
      
      Held, that the questions as to whether the defendant gave sufficient warning and properly managed his machine in attempting to pass the plaintiffs when nearing the point of intersection, of the roads, as well as the contributory negligence of the plaintiffs, were not questions of law but of fact proper for the j™7- .
    Cochrane, J., dissented, with opinion.
    Appeal by tli.e plaintiffs, Bosalie Mendleson and others, from a judgment of the County Court of Albany county, entered in the office of the clerk of said county on the 13th day of November, 1906, upon an order of said County Court, entered in said clerk’s office on the 13tli day of November, 1906, reversing a judgment of the City Court of the city of Albany in favor of the plaintiffs and dismissing the complaint.
    
      Daniel J. Dugan, for the appellants.
    
      Frederieh Townsend and Charles II. F. Reilly, for the respondent.
   Kellogg, J.:

The plaintiffs’ closed carriage was driving along the highway approaching a road intersecting it from the left at an acute angle as they approached it. The defendant with his automobile was traveling in the same direction. Plaintiffs’ carriage, in turning from the road into the intersecting road, did not turn to the right of the center of intersection of the two roads, as required by subdivision C of section 157 of the Highway Law (Laws of 1890, chap. 568, as amd. by Laws of 1902,- chap. 96), but it followed the usual line of travel and began to turn to the left before it arrived at the intersection of the roads. Just before plaintiffs began to turn to the left, the defendant’s automobile turned to the left for the purpose of passing the plaintiffs, and near the point of intersection of the roads a collision took place and plaintiffs’ carriage and horse and the defendant’s automobile were injured, and each party seeks to recover damages from the other on the ground of negligence.

I think the County Court was justified in reversing the plaintiffs’ judgment, but not in dismissing the complaint. Plaintiffs expended for repairing the carriage $27.25, and it was then evidently in better condition than it was before the accident. They paid $18 for treating the horse, and the only alleged injury remaining to the horse is that it is timid, restless and difficult to manage when near an automobile. The witness as to the damage and repairs to the carriage, while admitting its present condition, swore that before the accident it was worth.from $250 to $300, and. after the accident but $50 or $100, because a wagon that had gone through an accident would not sell for as much as it otherwise ■ would. The witness called to show the injury to the horse sw.ore that a family horse was worth $250; that he had seen this horse, in his stable, where it was kept, but he had not seen it outside; that if the horse shied and was uneasy and nervous when around an automobile, as a family horse it ivas worth but from $50 to $75. The evidence as to the amount of damage sustained by the injury to the horse and the carriage is unsatisfactory. As to the carriage, aside from the repairs, the alleged damage was purely fanciful and not worthy of consideration. The defendant was not required to pay the difference in value of the horse before and after the accident, treating it only as a-.family horse. The damages are excessive and are not founded upon any satisfactory basis, and the judgment of the City Court was,properly reversed.

The law of the road, above cited, required the plaintiffs in turning the corner to the left to pass to the right 'of the center of intersection of the two roads, and subdivision B of that statute required the defendant- to pass the plaintiffs upon the left. Subdivision 1 of section 4 of the Motor Vehicle Law (Laws of 1904, chap. 538) recognizes the same rule.

The defendant was familiar with these roads and we may assume knew these statutory provisions. He knew that if tlie plaintiffs were to turn the corner which they were approaching and he attempted to pass them on the left, as the statute contemplates, that it would probably cause a collision if they were, near the intersection at the same time. If there had been no intersecting high- . way the defendant could have passed. in safety, but it is a fair question of fact whether in attempting to pass the plaintiffs in the immediate. vicinity and while approaching this intersection from the left he was not guilty of negligence. ' A delay of a few moments would have enabled him to determine whether the plaintiffs -were to turn .the corner or not, and it may not be unreasonable to say that there -were sufficient opportunities to pass a team without attempting to pass at a point and upon a side where'the plaintiffs might desire to turn upon a connecting road. I think, therefore, the question as to whether the defendant gave a sufficient warning, and whether he properly managed his machine in attempting to pass the plaintiffs at this particular point, were fair questions of fact.

It is evident that the plaintiffs were not entirely to the right side of the intersecting point of the roads, but it is not clear that that fact had anything to do with the injury. We cannot say as a matter of law that the plaintiffs, in attempting to turn this corner in the usual beaten path when they saw no carriage upon the crossroad approaching them, were guilty of negligence. Perhaps it was reasonable for them to suppose that no one would attempt to pass them from- the rear at this corner and thus invite a collision. Plaintiffs’ violation of the statute was some evidence of negligence, but all the other facts making up the situation as it then was must be considered in determining whether they acted with due care. If the plaintiffs were negligent it is still a question of fact whether such negligence contributed as a cause to the injury. It was, therefore, a question of fact and not of law whether the plaintiffs were guilty of negligence which contributed as a cause to the injury.

The judgment of the County Court is modified by striking there-' from the part thereof directing a dismissal.of the complaint and the award of costs to the appellants, and inserting in lieu thereof that a new trial is ordered before the City Court at a time to be specified, with costs to the defendant to abide the event, and as so modified said judgment is affirmed, with costs to the appellants to abide the event..

All concurred, except Cochrane, J"., who voted for a reversal of the County Court judgment and affirmance of the City Court, judgment, with opinion.

Cochrane, J. (dissenting):

I agree with Mr. Justice Kellogg that the questions of negligence both of the plaintiffs and defendant were questions of fact. But I also think that not only those questions, but also the question of damages, were well decided by the City Court. The damage to the plaintiffs’ wagon was $27.25 and no more. Only one witness testified as to the amount of damage to the horse. He was acquainted with the horse in question and testified that its reasonable market value before the accident was $250. He was then asked a hypothetical question as to the value of a horse displaying such traits and characteristics as the plaintiffs’ witnesses testified that the horse in question developed after the accident, and in answer thereto stated that the general market value of such, a horse was'from $50 t.o- $75. He also testified that .the reasonable value of the services of the veterinary surgeon was $18. The testimony of this, witness was uncontradicted, although if untrue it was susceptible of contradiction. There was no question raised that plaintiffs’ method of proving these damages was incorrect. Assuming, as the City'Court was at liberty to assume, the truthfulness of the plaintiffs’ witnesses in describing the characteristics of the horse as developed after the accident, I do riot see how in fairness to the plaintiffs, it can be said that the judgment is excessive. The testimony of the only witness as to the amount of damages to the horse showed such damage to be not less than $175, which with the $18 for veterinary services and $27.25 for the wagon aggregated the amount of $220.25 damages awarded the plaintiffs. Defendant "was apprised by bill of particulars of the specific items' of damages claimed, but offered no evidence in reference thereto. Apparently he was content to permit that branch of the case to go practically by default. A party should not be permitted to suffer one feature of the case to remain unlitigated or only perfunctorily litigated and subsequently complain on appeal of the consequences of his own indifference. The City Court took at its face value the evidence submitted on the question of damages. According to such evidence the damages awarded were not excessive, but within the estimate of the only witness who .testified on that subject. The County Court may have believed that the damages awarded were excessive, but had no right nor have we any right to substitute belief for the judgment of the trial court supported as' it was by uncontradicted evidence, not inherently improbable.

I think, therefore, that the judgment of the Comity Court should be reversed and that of the City Court affirmed.

Judgment of the County Court modified as per opinion, and as modified affirmed, with costs to appellants to abide event of .a new trial to he had at a time to be specified in the order which, if not .agreed upon, to be settled by Chesteb, J.  