Lewis v. Rowland , 225 A.D. 25 ( 1989 )

Per Curiam.

To render vehicles visible to travelers on the highways at night, in order that the public may use the highways in safety, is the purpose of the statute requiring front and rear hghts on vehicles. In any specific instance, the attainment of visibility in time to prevent disaster meets the demand of the law.

The nonsuit in this case was on the ground that plaintiff was guilty of contributory negligence as a matter of law. The testimony most favorable to plaintiff authorizes the conclusion that defendant’s truck and trailer were standing still on the traveled highway before and at the time of the collision; that plaintiff’s driver could see the road ahead 110 feet by bis own lights; that when he was fully 200 feet from the truck he saw the red fights on its rear; that the rear end of the trailer was 13 feet behind the rear of the truck; and that there was no fight at the rear of the trailer at the time of the collision, as required by section 286, subdivision 2, of the Highway Law (as amd. by Laws of 1926, chap. 507. Since amd. by Laws of 1928, chap. 682). The absence of this rear fight meant negligence prima facie. For plaintiff’s driver to proceed when his front fights did not fully meet the demand of the statute (Highway Law, § 286, subd. 3, as amd. by Laws of 1926, chap. 507) was prima facie evidence of contributory negligence; but such dereliction would not preclude recovery by plaintiff unless it was at least a concurring, proximate cause of the mishap. (Martin v. Herzog, 228 N. Y. 164; Fox Construction Co., Inc., v. Dailey’s Towing Line, Inc., 180 App. Div. 593. As to the general principle, see, also, Ward v. Clark, 232 N. Y. 195; Quinn v. 0’ Keeffe, 9 App. Div. 68; appeal dismissed, 151 N. Y. 633.)

We conclude that plaintiff was not guilty of contributory negligence as a matter of law; that the question whether plaintiff was guilty of negligence contributing to bringing about the collision because the automobile’s front fights were not up to the statutory requirement or because plaintiff’s driver.was careless in watching the road or in handling the automobile was one of fact for the jury.

The judgment should be reversed on the law and a new trial granted, with costs to appellant to abide the event.

All concur, except Edgcomb, J., who dissents in an opinion and votes for affirmance. Present — Clark, Sears, Taylor, Sawyer and Edgcomb, JJ.