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Henry v. Ehrlich Transfer and Trucking Co.

Decided: January 26, 1938.

ELIZABETH HENRY, ADMINISTRATRIX AD PROSEQUENDUM OF WILLIAM W. HENRY, DECEASED, PLAINTIFF-RESPONDENT,
v.
EHRLICH TRANSFER AND TRUCKING COMPANY, INCORPORATED, A CORPORATION, AND FRANK M. VENTI, DEFENDANTS-APPELLANTS



On appeal from the Supreme Court.

For the appellants, Frank G. Turner.

For the respondent, Coult, Satz & Tomlinson.

Lloyd

The opinion of the court was delivered by

LLOYD, J. This case involves the conduct of a pedestrian and that of the driver of a truck at the intersection of two important highways.

The plaintiff below recovered a judgment for damages resulting from the death of her husband who was struck and killed by a truck owned by the corporation defendant and operated by its driver, the basis of the recovery being the negligence of the latter.

The defendants, appealing, allege numerous errors in the trial of the case, but two of which we find it necessary to consider. These were instructions to the jury concerning the right of way.

The facts which the jury might find from the evidence were that Henry had alighted from a north-bound trolley car that had stopped at the southerly intersection of Washington avenue and Joralemon street in Belleville, passed in front of the car to his left, and in further attempting to cross the

street was struck by the truck; that there were crossing lights at the intersection and these at the time faced green in favor of the truck and red against Henry; that Washington avenue was sixty feet wide and Joralemon street forty feet wide; that there was a double track for trolley cars on Washington avenue; that there were snow banks piled on either side of both streets; that the right-hand side of the trolley car was therefore impassible in that the necessary clearance did not exist for the truck to pass on that side.

It was in this situation that the court, after stating that there was no dispute in the case about the traffic lights, and that they were set as above described, instructed the jury as follows: "Mr. Henry had a right, however, to cross the street, having in mind how a reasonably prudent person would act in crossing the street when traffic was traveling in a northerly and southerly direction. It is contended by the plaintiff that in exercising that right Mr. Henry had passed in front of a standing trolley car. If that be a fact, he had a right to assume that in so doing no vehicular traffic going in the same direction as the trolley car would pass the trolley car at the left because the law prohibits vehicular traffic from passing a trolley car on the left."

We think in so instructing, the court gave a wrong impression to the jury of the rights of the parties. The controlling sections of the Traffic act of 1928 are article V, paragraph 1, page 728, Article XI, paragraph 3a, page 740, and article XI, paragraph 3b.

The first of these provides that "on highways where traffic at intersections is controlled by a traffic signal or police officers, pedestrians shall not ...


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