Caesar v. Fifth Avenue Coach Co.

45 Misc. 331 | N.Y. App. Term. | 1904

Bischoff, J.

The action was to recover for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant’s servant in the management and control of its automobile which was caused' to collide with the plaintiff, a conductor in the employ of the Metropolitan Street Railway Company, just as he had stepped off his car to the street, or was in the act of doing so. That the plaintiff met with the collision complained of, and that he sustained some degree of injury therefrom, are facta beyond the preadventure of dispute, the difference between the litigants having reference only to the manner in which the collision was brought about. The burden of the appeal is, therefore, that the evidence fáils to show that the collision was caused solely by the negligence of the defendant’s servant, and that, in any event, the verdict for the plaintiff is against the weight of the evidence. But to neither of these propositions do- we agree.

The plaintiff’s testimony, that at the time of the collision his car, southbound, was standing in the westerly track on Eighth avenue, being unable to proceed because of a blocking of the track ahead of it, was corroborated by the testimony of three apparently disinterested witnesses. All these witnesses furthermore agreed that at the time when the plaintiff stepped off the forward end of his car to the street, the defendant’s automobile was proceeding in the direction of the plaintiff from fifteen to eighteen feet northerly, in a line about three feet distant from the track upon which the car was standing, with a clear space of from twelve to fifteen feet between the track and the curb of the westerly sidewalk. That the automobile was proceeding at a rate of from three to five miles an hour appears substantially without dispute, and since the operator of the automobile, from his position, must have had a clear view ahead of him, and admittedly did have, the only fair inference from the fact of the collision is that he either recklessly or negligently persisted in his course. Ordinary prudence would certainly have required him either to halt, or to deviate from his course into the open space on his right, in which event the collision .would have been avoided. The story of the defendant’s witness, Fant, seems an improbable one. According to that the car was not at a standstill, but was proceeding southwardly at a rate of speed exceeding that of the automobile, which was going in the same direction, yet the plaintiff was struck when alongside his car, almost the very moment when he stepped from the car to the street. That this could be when the lesser rate of speed of the automobile would naturally tend to increase the distance between it and the car seems incredible.

The question of the plaintiff’s contributory negligence was also properly left to the jury. Assuming that the car was at a standstill, as the jury could very well find from the evidence, the operator of the automobile could reasonable apprehend the departure of persons from the car. The plaintiff was at all times engaged in the performance of his duty, and this required him to go from the forward end of.the car to the rear. He chose the street as a meáns, looking in the direction in which his car was to proceed, as any person would ordinarily do under the same circumstances, and so did not observe the automobile. According to the statements of his witnesses the automobile was then from twelve to fifteen feet distant to the north, and not abreast of the car, with the clear space, already alluded to, west of the track. He had a right to rely upon the exercise of reasonable care of drivers of vehicles, to avoid causing injury to persons in the street, and his failure to anticipate the omission of such care did not render him negligent.

The judgment and order appealed from should be affirmed, with costs.

Freedman, P. J., and Fitzgerald, J., concur.

Judgment and order affirmed, with costs.