Berckhemer v. Empire Carrying Corp. , 158 N.Y.S. 856 ( 1916 )

McLaughlin, J. (dissenting):

I am unable to concur in the opinion of Mr. Justice Scott. The fact is uncontradicted that the motorcycle on which the •plaintiff was riding ran into the defendant’s automobile, and not the automobile into the motorcycle. The plaintiff’s own testimony shows that had he exercised the care which the law imposed upon him, for his own safety, the accident would have been avoided. He testified that when he first saw the automobile he was between thirty and thirty-five feet from it; that he then had the motorcycle under control and was running about ten miles an hour; and that when running at that rate of speed, it could be stopped within ten or fifteen feet. He made no attempt to stop, but what is perfectly apparent is that he attempted to run around the automobile and in doing so ran into it. Even if it be assumed, therefore, that defendant’s driver was negligent, it did not entitle plaintiff to recover, because his injuries were due, at least in part, to his own negligence.

I think the judgment should be reversed and a new trial ordered.

Judgment and order affirmed, with costs.