22 N.Y.S. 821 | N.Y. Sup. Ct. | 1893
This action was brought to recover the damages which the plaintiff sustained to his horse and wagon by reason of a
It is claimed on behalf of the appellant that there was no negligence chargeable to the defendant, and that the collision occurred through the negligence of the plaintiff’s driver, and that the trial court erred in denying its motion for a nonsuit, and in refusing to direct a verdict in its favor. We are of the opinion that no error was committed in this regard, and that these questions were properly sub-' mitted to the jury. The plaintiff’s driver testified that he did not hear the bell ring upon the defendant’s car, but other evidence tends to show that it was rung. We shall therefore assume that it was' sounded as testified by the defendant’s witnesses. The plaintiff’s driver was passing across the avenue'on an angle coming from Sherman street, in a covered wagon, with his back partially towards the approaching, car. He sat in the front of his wagon, and looked west as he entered the avenue. The westerly bound car, in a measure, obstructed Ms view, so that he did not see the car approaching upon the southerly track. He first approached the crossing, and was partly across when the collision occurred. The opportunity of the. defendant’s motor, man to see the approach of the plaintiff’s wagon was equally as good, if not better, than that of the plaintiff’s driver to see the approach, of the defendant’s car. The westerly bound car doubtless obstructed the vision, to some exten.t, of both the motor man and the driver; but it is apparent that, had the motor man been upon Ms guard, and had proper control of his car, he could have seen the wagon in time to have stopped Ms car, and avoided the injury. His own evidence is to the effect that he was running at a speed of six to seven miles an hour when he struck the wagon. Other evidence tends to show that he was running at a much higher rate of speed. That he-saw the plaintiff’s rig as it was coming out of Sherman street into the avenue. That the west bound car prevented him from seeing it for a while. That plaintiff’s horse and wagon were traveling diagonally across tibe track or street in the same direction that the car was going. That the horse was on a trot, and so continued until the wagon was struck. That when he first saw the wagon, after the car had passed, he was pretty near to it,—within six or eight feet. That he rang Ms bell, but the plaintiff’s driver did not seem to pay any attention to it. It thus appears that he,- approaching the plaintiff’s
The judgment should be affirmed. All concur.