Opinion
October, 1929.
Judgment reversed upon the law and the facts, with costs, and complaint dismissed, with costs. We are of opinion that plaintiff was guilty of contributory negligence as a matter of law. He did not testify that he looked, but testified that he did not see the defendants' car before the collision, under circumstances justifying the presumption that he would have seen it had he looked. Both his witnesses, one of whom was driving a car immediately behind him, testified that they saw defendants' car before the accident. His witness Turby saw defendants' car when it was one hundred feet from the corner, and the taxi driver, ten feet behind plaintiff, saw it before the accident long enough to estimate the speed at which it was traveling. ( Dolfini v. Erie R.R. Co., 178 N.Y. 1; Ward v. Clark, 232 N.Y. 195, 198.) Notwithstanding the fact that plaintiff had the right of way, it was his duty to use reasonable care to avoid a collision. ( Wallace v. D'Aprile, 221 App. Div. 402; Hood v. Stowe, 191 id. 614, 617; Shuman v. Hall, 246 N.Y. 51; Clark v. Doolittle, 205 App. Div. 697, 699.) Lazansky, P.J., Young, Hagarty, Seeger and Carswell, JJ., concur.