Opinion
October 28, 1970
Appeals by the plaintiff and the defendant Wetmore from a judgment of the Supreme Court, entered June 10, 1969 in Otsego County, upon a verdict rendered at a Trial Term. This is a negligence action. The plaintiff was a passenger in an automobile being operated by her son, defendant Wetmore, in a westerly direction on Spruce Street in the City of Oneonta, New York. The Wetmore vehicle was in collision at the intersection of Spruce Street and Maple Street with a truck owned by the defendant New York Telephone Company and being operated in a northerly direction on Maple Street by the defendant Vagliardo. As a result of the collision plaintiff was thrown from the vehicle and severely injured. The jury found defendant Wetmore solely responsible for the accident. It is defendant Wetmore's contention that the verdict is contrary to the weight of the credible evidence. Plaintiff contends that the evidence raised issues of fact which were properly resolved by the jury. Plaintiff also appeals the verdict in favor of the Telephone Company. It is uncontroverted that there was a stop sign and a blinking red light controlling traffic proceeding north on Maple Street and a blinking amber light controlling traffic proceeding west on Spruce Street. It was clear, dry and daylight. Both streets are straight and level. The defendant Wetmore testified he was proceeding about 20 miles an hour and when about 30 feet from the intersection he first saw the Telephone Company truck stopped. He slowed down, looked in the other direction and proceeded into the intersection, when he was hit. He further testified that after the accident Vagliardo admitted that it was his fault. Vagliardo testified that he stopped; looked both ways; there was nothing obstructing his view, but, he saw nothing; he shifted into second gear and was going about 10 miles an hour when the collision occurred; and did not see the Wetmore vehicle until just prior to the collision. He did not deny the conversation testified to by the plaintiff, but stated he was upset at the time. The record also reveals there was damage to the driver's side of the Wetmore vehicle and to the front of the truck, and while there was damage to the front of the Wetmore vehicle, this was explained by its collision with the tree after the accident. Neither driver approaching this intersection had an absolute right of way. Each was obligated to use reasonable care under the circumstances by exercising forbearance and caution regardless of the color of the traffic light. ( Shea v. Judson, 283 N.Y. 393; Leach v. Patroon Cab Co., 27 A.D.2d 769.) Section 1142 Veh. Traf. of the Vehicle and Traffic Law provides that the stopped vehicle at a stop sign shall yield the right of way to any vehicle which has entered the intersection from another highway or which is approaching so closely as to constitute an immediate hazard. Section 1113 Veh. Traf. of the Vehicle and Traffic Law charges the defendant Wetmore with the duty to proceed through the intersection only with caution. As a general proposition, a reading of these two sections gives the right of way to defendant Wetmore. At the time when defendant Wetmore was 30 feet back from the intersection and saw the Telephone Company truck stopped, he had a right to assume that the other driver would obey the law and permit him to pass through the intersection. ( Foley v. State of New York, 265 App. Div. 682, 267 App. Div. 1036, affd. 294 N.Y. 275.) Vagliardo testified he looked both ways and saw nothing; that he did not see the Wetmore vehicle until he caught a glimpse of it just before the collision, in spite of the fact that it was clear, daylight and his view unobstructed. Under these conditions he was bound to see what he might have seen. ( Weigand v. United Traction Co., 221 N.Y. 39, 42.) The only reasonable inference to be drawn from this testimony is that Vagliardo either did not look or erroneously thought he had time to get through the intersection. In either instance, it constituted negligence, which is further substantiated by Vagliardo's failure to deny his admission of fault. (See Epstein v. Cohen, 288 N.Y. 307.) Upon this record as a whole, we are compelled to conclude that the verdict of no cause for action in favor of the Telephone Company is against the weight of credible evidence and must be set aside. Since this necessitates a new trial as against the defendant Telephone Company, in the interests of justice, there should be a new trial as against all defendants. (See Troll v. Schoonmaker Bros., 34 A.D.2d 1030.) Judgment reversed, on the law and the facts, and a new trial ordered, with one bill of costs to appellants. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Sweeney, JJ., concur.