95 N.Y.S. 1072 | N.Y. App. Div. | 1905
Lead Opinion
There is nothing in the record -before us which- shows,, even inferentially, that- the intestate exercised any care whatever before attempting to cross defendant’s tracks. On this point there is no dispute as to the facts.
On Avenue A in the city of New York the defendant operates two lines of cars, the tracks upon which the cars going in a northerly direction are run being on the easterly, and those going in a southerly direction on the westerly side of the avenue and the distance between them is a little over five feet., On the evening of March 28, 1904,-the intestate was a passenger on a north-bound car. He alighted at Ninetieth street, the car stopping for that purpose at 'the southerly crosswalk. -After leaving thenar he immediately-passed around the rear end of it and attempted to cross the tracks upon which the southerly cars were run- and in doing so was struck .and killed by á. car going in that direction. Whether he had succeeded in getting onto tlie track or was just in the act of doing so, did not appear. The only evidence bearing upon -his act after leaving the north-bound car was the testimony of the plaintiff’s witness Walter, who. stated: “ 1 first seen .the man when he started to walk around . the north-bound car, as I take for granted he got off. There was a north-bound car there, at the time. The north-bound car when I
There was some conflict between the plaintiff’s witness and those called by the defendant as to just what happened immediately prior to the time when the deceased was struck by the car. But adopting the testimony of plaintiff’s witness — and his is the most favorable to her — Ido not see how this recovery can be sustained. The testimony does not show that the intestate exercised any care whatever. The car was lighted, there was nothing to obstruct his vision, the danger was apparent, and had he used his eyes, as he was bound by law to do, it must have been evident to him.
It may be conceded that there was sufficient evidence to go to the jury on defendant’s negligence, but that does not aid the plaintiff, because she was obligated to prove, before she was entitled to recover, that the intestate was himself free from negligence, and in this respect she utterly failed. ■ Defendant’s motions to dismiss the complaint at the close of her case and at the close of the trial should have been granted and the exceptions taken to the rulings denying such motions must be sustained. It is true that less evidence is required of a personal representative as to contributory negligence of a decedent than would be required in case of a surviving person. (Schafer v. Mayor, 154 N. Y. 466.) But in such cases some evidence must be given from which the jury can find the intestate did exercise the care required by law. Here, as already indicated, there was nothing which would justify such finding unless it be the death of the intestate, and that is insufficient. An inference cannot be drawn from a presumption that he would exercise care and prudence in regard to his own life and safety. ( Wiwirowski v. L. S. & M. S. R. Co., 124 N. Y. 420.)
I am of the opinion that the judgment’and order, appealed from ; should be reversed, and a new trial ordered, with costs to appellant to abide event. ■
. O’Brien, P. J., Ingraham and Laughlin, JJ.,. concurred; Patterson,. J., dissented.
Dissenting Opinion
The plaintiff, .as administratrix of David Axelrod, recovered a judgment against the defendant in an action brought for damages caused by'the death of her intestate under the following circumstances: On the evening of March 28, 1904, David Axelrod was a
But it is claimed that there is no evidence to show that the plaintiff’s intestate was free from contributory negligence. There is no positive evidence that he either stopped or looked or listened. It is settled in the law that in a case such as this less evidence is required of a personal representative as to contributory negligence of a decedent than would be required in the case of a surviving person. (Schafer v. Mayor, 154 N. Y. 472, citing cases.) Nevertheless the plaintiff’s intestate was bound to exercise reasonable care and if there is any evidence on this subject of contributory negligence, it was properly submitted to the jury. There may be,cases in which it appears from the whole evidence that even -if an intestate failed to look and listen that would not convict him of contributory negligence if he, under all the circumstances, would have been justified in attempting to cross the track. In such cases contributory negligence, as matter of law, cannot be attributed. There is evidence
I think it was for the jury to say, undhr these circumstances, whether it was negligence on the part of the plaintiff’s, intestate to cross without looking when the car was a block away from him when he started to cross. If he had seen that car he would have been authorized to believe that it was under the control of the motórman. We do not know whether the plaintiff did or did not lookj but had he looked aiid had he seen a car a block away when he passed behind the ear from which lie' alighted, it was for the jury to say whether it was contributory negligence in attempting to cross. In tiffs respect the case of Monck v. Brooklyn Heights R. R. Co. (97 App. Div. 447) is in point. Here it cannot be said, as matter of law, that had the plaintiff looked and had he. seen the approaching car he would have been chargeable with contributory negligence in proceeding to cross the tracks.
So far as the question of excessive damages is concerned, f think there is enough in the record to support the verdict.
I think the judgment should be affirmed.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.
Concurrence Opinion
I concur in Mr. Justice McLaughlin’s opinion. I- think this, casé is controlled by Reed v. Metropolitan Street R. Co. (180 N. Y. 315), where Judge Bartlett, delivering the opinion of the court, says A person passing behind the rear of a car "and stepping onto the track where a car may be approaching from the opposite direction, is bound to satisfy himself that the way is clear. It is apparént that the slightest caution on the part of this plain-, tiff would have advised him of the'presence of the approaching car and avoided this accident.” The evidence is uncontradicted that the deceased walked behind a north-bound car from which he had alighted, stepped onto the south-bound track,"walked leisurely, and was struck by. the south-bound car. This south-bound car was lighted; nothing to prevent the deceased from seeing it, if he had looked, and the conclusion is, therefore, irresistible that he passed from behind the rear of the car from which he had alighted on the south-bound track without looking or having - seen the approaching car, walked directly in front of it, he being, in either case, guilty of contributory negligence.
. Laughlin, J., concurred.