Hall v. Hepp , 210 A.D. 149 ( 1924 )

Clark, J.:

These cases were tried together. They were brought by two policemen of the city of Buffalo to recover damages for personal injuries sustained by them while driving their motorcycles through one of the city streets at two o’clock in the morning, October 24, 1920. These officers were returning to a police station after having completed certain duties that had been assigned to them. As they were riding toward the station, they collided with a house which defendants Hepp were engaged in moving and which had been left wholly unguarded in the street.

Defendants had received permission from the proper authorities of the city to move the house through the street, but on the night of the accident they had left it in the street without red lights to warn travelers that the street was obstructed.

The house occupied practically the entire width of the street. The street was poorly lighted with gas lights and the house was about the same color as the pavement. Plaintiffs were driving their motorcycles at a speed of between fifteen and eighteen miles per hour but they did not see the obstruction in the street in time to avoid a collision.

They had regulation headlights on their motorcycles which had been furnished by the city but at the time they were using their dimmers which showed ahead not over twenty feet.

At the conclusion of plaintiffs’ case, nonsuits were granted on the ground that at the time of the accident plaintiffs were driving in violation of a city ordinance which provided among other things that on all motor vehicles operated in the city of Buffalo front lights should be provided that -should be visible at least 250 feet in the direction in which the motor vehicle is proceeding. Concededly the lights operated by plaintiffs on their motor vehicles on the night in question did not comply with the terms of section 24, subdivision 2, of chapter 60 of the city ordinances of Buffalo with reference to front lights on motor vehicles.

The learned court by granting defendants’ motions for nonsuits held in effect that the fact that plaintiffs were driving their motorcycles without the lights provided for by the ordinance above referred to, established their contributory negligence without permitting the jury to say whether such negligence was the proximate cause of the accident.

We think that in thus disposing of these questions as a matter of law the learned court fell into error.

We have recently held that the mere violation of some traffic law or ordinance by the driver of an automobile does not of itself constitute such negligence as to make him a trespasser upon the highway and preclude his recovery of damages caused by the negligence of another. (Clark v. Doolittle, 205 App. Div. 697.) It must be established that the violation was a proximate or direct cause of the injury. That ordinarily, as here, is a question of fact.

Plaintiffs may have had reason to believe they would be given warning of the presence in the street of such an unusual obstacle as a large building, and, therefore, have been justified in relaxing their vigilance. The officers were evidently still on duty. They were returning their motorcycles to the police station. If so, the ordinance by its terms (Chap. 60, § 25) exempted them from obedience to its provisions.

Furthermore, an officer on duty is not always held to the same degree of care as the ordinary wayfarer. (McDade v. International R. Co., 235 N. Y. 11.)

Under all the facts and circumstances shown, we think the questions of plaintiffs’ negligence and, if such negligence was established, the question whether it was a proximate cause of the accident, should have been submitted to the jury and not disposed of as a matter of law. (Rider v. Syracuse R. T. R. Co., 171 N. Y. 139; McDade v. International R. Co., supra.)

The judgments and orders should be reversed on the law and new trials granted, with costs to appellants to abide the event.

All concur; Hubbs, P. J., not sitting.

In each case: Judgment and order reversed on the law and new trial granted, with costs to appellant to abide event.