Kirk v. Magee , 1 A.D.2d 452 ( 1956 )

Bergan, J.

Liability has here been imposed on appellant City of New York because the driver of a fire department pumper, responding to an alarm of fire, failed to take precaution to prevent a vehicle coming from an intersecting street from running into the side of the apparatus. We think the decision holding the city to have been negligent is against the weight of the evidence.

The traffic light at the intersection was red for the fire apparatus; green for the other vehicle coming into the intersection. Nevertheless, the fire apparatus, responding to an alarm, had the right of way. (Traffic Regulations of N. Y. City Comr. of Traffic, art. 5, § 78.) This section gives preference to vehicles of the fire department ‘ ‘ when going to * * * a fire or an alarm.”

Corollary to this right of way is the imposition of an affirmative duty on drivers of other vehicles by section 80 of the same article. Upon “the immediate approach ” of fire apparatus when an audible signal is being given by bell, another vehicle shall ‘£ yield the right of way ’ ’; the operator shall bring the vehicle to a stop parallel to a curb, and as near the curb as possible and stay there until the fire apparatus “ has passed The vehicle thus stopped must be kept “ clear of any intersection This section does not relieve the driver of the fire apparatus from a duty ££ to drive with due regard for the safety ” of all persons using the street.

The proof is abundant in support of the court’s finding that as the pumper approached the intersection late at night its fire bell was being rung; four headlights, two of them red, were lighted in front; and on the top of the cab a revolving red light was on, and in turning operation. This light threw a beam about 200 feet. A civil defense regulation operative at that time forbade the use of sirens on this type of equipment.

The fireman-driver testified the fire truck was proceeding at 10 to 12 miles an hour; but even if the suggestion on his cross-examination that he had testified in Magistrate’s Court that it was going 20 miles an hour be accepted, that speed was not excessive for fire equipment answering an alarm; and there is no proof anywhere in the record to suggest excessive speed of the fire truck or that its rate of speed played any part in the occurrence of the accident.

The fire pumper was justified in proceeding through this intersection on its way to the fire. Since the warning required by the traffic regulations was being given, the defendant Magee, operating the vehicle coming into the intersection, was required to bring that vehicle to a full stop at the curb and required not to come within the intersection until the fire pumper ‘ ‘ had passed ”.

Defendant Magee testified that he first noticed the fire truck when he was from 10 to 15 feet from the corner at the intersection and that the truck was then about 10 feet from the line of the curb at the intersection. Magee estimated that his car traveled 40 feet from the point he first saw the fire truck until he ran into it. He had been traveling at 25 miles an hour. He applied his brakes which he said did not give much reaction and he felt the car sliding ’ ’ under him and into the fire truck. Magee testified he told a fireman after the accident that I hadn’t seen him until it was too late His brakes did not hold, although they had worked properly earlier in the evening. The point of collision was midway at the side of the truck at the suction intake.

The fireman driving the pumper truck testified that he first saw defendant Magee’s car when the truck had reached the building line of the intersecting street and that Magee’s car was then 50 or 60 feet from the curb of the street on which the fire truck was moving and was approaching the intersection. He said he ‘ ‘ sort of watched him for a second or two ’ ’ and continued on through the intersection. He did not “ watch him continuously ”.

This is not a case where the operator of the fire apparatus is confronted with an actual and apparent danger in his path which in the exercise of reasonable care he would be required to avoid if he could. It is not a case where a pedestrian walking across a street in view of the driver of the fire equipment, and waved on by a policeman, was run down by the fire apparatus, such as that considered in Zagelbaum v. City of New York (302 N. Y. 793); nor is it a case where the emergency vehicle was proceeding at high speed and without warning (Thayer v. City of New York, 293 N. Y. 801). The fire truck here was operated in accordance with traffic regulations and the requirements of statute and of rule. It did not strike anything. It proceeded into the intersection and was struck.

There can be little doubt that as both vehicles proceeded into the intersection, the continuance of the fire truck, having the right of way, was not in itself negligence (Milstrey v. Schenectady Ry. Co., 276 App. Div. 1039); and if its bell was being rung it had the right to continue notwithstanding the traffic control light (County of Broome v. Binghamton Taxicab Co., 276 App. Div. 438).

The driver of the fire truck was certainly not required to watch Magee’s vehicle to ascertain whether its brakes would hold. Liability could no more reasonably be imposed for a failure to foresee that Magee’s brakes woul.l not stop his car than it could be imposed for the failure of the fireman-driver to anticipate which way the private vehicle would turn in the intersection collision considered in Garrett v. City of Schenectady (268 N. Y. 219). The fireman there, “ doing a lawful act ” as Judge Loughran noted (p. 223), could not as a matter of law be deemed at fault “ because of his want of prevision of what was in plaintiff’s mind.”

The fireman-driver and Magee are in agreement on one important aspect of the accident; that it would be expected the Magee car would be able to stop, and would stop, to allow the fire pumper to proceed. Magee expected to stop; and the fireman-driver was certainly justified in the same expectation.

Magee failed to stop because his brakes did not hold and he slid into the side of the fire truck. It is enough to charge him with responsibility for this. It goes very far, indeed, to charge the fireman, too, with such a responsibility; and through him the city. No fireman in the discharge of duty in operating fire equipment could be expected to meet any such burden of extreme caution or of apprehension in the absence of some danger signal. He had the right, at least, to expect that the other driver would let his fire equipment pass without running into the side of it.

We are of opinion, therefore, that the decision for plaintiffs against the city is against the weight of the evidence. In this view of the case we assume that the question whether the fireman-driver should have watched the Magee vehicle more closely as they both came into the intersection, and have been ready to turn away if it seemed not to be able to stop is an open question of fact.

It is not easy to accept the argument pressed in the respondents’ brief that he “ could have ” stopped within 30 feet and still given Magee 15 feet in which to continue, or he “ could have ” swerved left, easterly, on the intersecting street, and these arguments must be considered in the light of the policy in respect of the right of fire apparatus to get on to a fire discussed in Garrett v. City of Schenectady (supra) and to proceed in priority to other traffic. The drivers of fire apparatus cannot usually be required to make sure that other vehicles are stopped before they continue on. We leave this question open, however, to the fresh judgment of the court on the facts on the new trial. We regard the verdict of $7,500 in favor of plaintiff Rita Kirk excessive in the light of proof of her injuries.

The judgment in favor of all plaintiffs against defendant City of New York should be reversed, on the law and the facts, and a new trial ordered on the ground the decision is against the weight of the evidence; the judgment in favor of plaintiff Rita Kirk against defendant Magee should be reversed, on the law and the facts, as excessive and a new trial ordered unless such plaintiff stipulates to reduce the same to $3,500 and if such stipulation is filed such judgment should be affirmed; the judgment against Magee should otherwise be affirmed.