Opinion
November 12, 1924.
Frederic R. Twelvetrees, for the appellant International Railway Company.
Fred W. Thomas, for the appellant Turner.
Karl A. McCormick, for the respondent.
Present — HUBBS, P.J., DAVIS, SEARS, CROUCH and TAYLOR, JJ., All concur.
The collision between the street car and the truck may have been due, so far as the street car was concerned, to a negligent failure of the motorman to stop his car to allow the truck to pass before the car entered upon the intersection. Such negligent failure would be entirely unconnected with the circumstance that the point where he may have failed through negligence to stop was also a stopping place for passengers to alight. We find no ruling of the trial court which passes beyond the proposition stated above.
The rights of each of the two vehicles at the street intersection to cross the path of the other were equal. ( Moore v. Rochester R. Co., 204 N.Y. 309.) Priority in time in reaching the intersection is only one of the elements to be considered in determining the care exercised by the motorman in proceeding. ( Warne v. Brooklyn Heights R.R. Co., 175 App. Div. 559; Ward v. Clark, 232 N.Y. 195.) The request embodying an inflexible rule that priority in time gives priority of right was properly refused.
The judgment and order appealed from should be affirmed, with costs.
Judgment and order affirmed, with costs.