Schwartz, Gerstenhaber & Altman, Inc. v. Wayne County Produce Co.

Interpreting the evidence in the light most favorable to plaintiff as we must in the present situation, it appears that a fire truck proceeding north at the rate of fifteen miles an hour on the easterly side of First avenue between Ninety-seventh and Ninety-eighth streets and about in the north-bound car tracks had its further progress blocked by a south-bound horse-drawn truck of the defendant, which without warning turned across the roadway when the fire *253truck was only twenty-five feet distant. This sudden emergency caused the driver of the fire truck to swing sharply to the left to avoid an immediate and serious collision, and although he reduced his speed and applied his brakes his momentum carried him to the westerly side of the avenue where his truck collided with a truck owned by the plaintiff which was backed against the westerly curb. There was testimony that the fire truck gave ample warning of its approach by its gong. The complaint has been dismissed.

Regardless of the negligence or the lack of negligence of the driver of the fire truck, the defendant was clearly upon the plaintiff’s testimony a joint tort feasor whose inexcusable conduct produced the emergency which resulted in the injuries. It is claimed by respondent, however, that plaintiff was guilty of contributory negligence in that the position of its truck was a violation of subdivision 12 of section 11 of article 2 of chapter 24 of the Code of Ordinances of the City of New York. This ordinance prohibits the backing of vehicles to the curb except when actually loading or unloading. Apart from the question of fact whether the position of the truck was a contributory cause of the accident, plaintiff’s witness started to say that the vehicle was engaged in loading but was interrupted and at the conclusion of the case when defendant made a motion to dismiss based upon this omission plaintiff’s counsel said he believed that testimony had been given but that if he was in error as to this he offered to give it at that time. Under those circumstances the acquiescence of defendant’s counsel in the situation is tantamount to a stipulation that such testimony was in the record.

A prima facie case of negligence having been made out, the dismissal of the complaint was error and the judgment is reversed and a new trial ordered, with thirty dollars costs to the appellant to abide the event.

All concur; present, Burnt, McGoldrick and Levy, JJ.