Opinion
April 19, 1940.
Action by Clara Scott, individually and as guardian ad litem of Malcolm Scott, an infant, for damages for personal injuries sustained by reason of alleged negligence causing a collision between a motorcycle operated by the infant and a sanitation truck, and for loss of services and expenses. Consolidated therewith is an action by the owner of the motorcycle for damages thereto. Judgment for plaintiffs reversed on the law and a new trial granted, with costs to abide the event. It was error to refuse to charge that even though the vehicle coming from the right may have the right-of-way, the operator thereof is bound to use due care and if he sees that an accident might happen if he continues on his way without slackening his speed, then the duty is put on him to slow up or attempt to avoid an impending accident. The request, to the effect that it is also a duty upon the part of the driver of the vehicle coming from the right to have the same control of his car and exercise the same degree of care in approaching the intersection as is required of the driver coming from his left, and the request that the right-of-way statute does not give the absolute right-of-way to the vehicle approaching from the right, may be deemed to be included in the first request. ( Shuman v. Hall, 246 N.Y. 51; Ward v. Clark, 232 id. 195; Metzger v. Cushman's Sons, Inc., 243 id. 118; Kosowsky v. Coller, 227 App. Div. 740; Plantz v. Greiner, 232 id. 73.) Lazansky, P.J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.