Opinion
March 8, 1950.
Appeal from Supreme Court, Albany County.
Defendant Zehner, who alone appeals from the judgments and orders arising from an injury to a passenger in the Schenectady Railway Company's bus, was approaching an intersection bounded by streets merging at less than right angles. Under the definition established by subdivision 6 of section 2 Veh. Traf. of the Vehicle and Traffic Law, the area of merger of the streets was a statutory "intersection", in which the vehicle on the right merging street had the right of way under equal conditions. (§ 82, subd. 4.) The bus was approaching on the street converging from the left; the Zehner car on the street coming in from the right. Both vehicles continued straight ahead into the merging intersection, the front right corner of the bus coming in contact with the left rear of the Zehner car. The record does not show any excessive speed by the defendant Zehner, any change of direction by his vehicle, or any act upon which negligence could be found, and the physical points of contact between the vehicles strongly suggest that Zehner not only had the right of way, but was in the intersection before the bus. There are, however, some conclusory statements by witnesses applied to the Zehner car, as "cut across" and "crossed in front of" the bus, which, if sustained by careful examination of actual and factual observations could leave the question of appellant's negligence open to a jury's determination. The inutility of such conclusions without showing the facts of the observations in terms of distance and velocity is apparent when it is realized, for instance, that every vehicle exercising a right of way "crosses in front of" the other vehicle. A verdict in favor of a passenger in the bus (then an infant) and her father, arising from the collision, is against the weight of the evidence in the case of appellant Zehner. Judgments and orders appealed from reversed on the law and the facts and a new trial ordered, with costs to appellant to abide the event. Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ., concur.