Copeland v. Metropolitan Street Railway Co.

73 N.Y.S. 856 | N.Y. App. Div. | 1902

O’BRIEN, J.

It may be assumed, in view-of the reason assigned for dismissing the complaint, that the defendant’s counsel was impressed with the fact that a prima facie case had been made out,, bearing upon the defendant’s negligence. Whether he was or not, however, we think, from the evidence presented, that the motorman should have seen the plaintiff, who was in full view, endeavoring to cross the avenue to enable her to be in a position to take the car,, and that it was incumbent upon him either to slow down to avoid an accident, or else to give her some warning of his intention to proceed with undiminished speed. He, however, did neither, but, in-response to the signal made by the son to stop, pointed over his shoulder; thus probably intimating that the car was not to stop to take on passengers at that place, and that the son must wait for the next car. But that such intimation had been given was unknown to the plaintiff. The testimony, therefore, that the motorman continued to approach the crossing at full or very rapid speed, without ringing any bell or giving any warning, at a time when the plaintiff was passing across the track with a view to reaching the sidewalk, where she could board the car, and after he had the opportunity to see her when he was over half a block away, was sufficient evidence from which the jury might infer that he failed to observe that duty which, he owed to her.

We are thus brought to consider the evidence from the standpoint from which the court viewed it in dismissing the complaint on the ground that the plaintiff had failed to show that she was free from contributory negligence. We do not understand the rule to be, with-respect to the rapid passage of electric cars, that a person seeing a car in the distance is obliged to wait until it has passed and cars-are no longer in sight; for, with the short headway between cars,, there is hardly a moment of the day when there would be such a situation. On the contrary, we have many times held that pedestrians are entitled to a reasonable use of the streets and street crossings, and, when exercising such rights, they are justified in assuming that those managing the cars will respect them. If this is not the rule, and motormen are not required to observe some care in allowing pedestrians the reasonable use of streets and crossings, then, should they desire to cross our busy streets and avenues, in which electric cars are constantly passing, they could never get over, or, i£ they did, it would only be at the risk of life and limb. Here, before proceeding, the plaintiff had'observed the position of the approaching car, which, when she was near the track, she saw half a block away, and observed at that moment the signal given by her son to stop it. To board the car, which ran close to the sidewalk, it was necessary that she should be on the sidewalk opposite the north crossing; and,. to reach that point in the shortest way, her direction, as she had start•ed from the south crossing, was diagonally across the track, over which she concluded she could pass in safety. She, no doubt, thought ■that the signal given by her son wrould cause the car to slow down or to stop; and that in such event she would have crossed in safety is apparent from the fact that without the motorman having done anjrthing, so far as appears, to check the speed of the car, she had almost reached the sidewalk opposite the north crossing, and had her .right foot on the sidewalk, and was in the act of placing her left foot thereon,—it being raised from the ground for that purpose,—when -she was struck by the rapidly passing car, which did not stop after the accident occurred until it had gone two lengths further on. The plaintiff’s judgment, therefore, that she could cross in safety, was in fault only because of the fact that the motorman had decided not to stop, and did not, in answer to the signal, slow down; nor did' he, by the ringing of the bell, notify her of his intentions. Had he rung the 'bell, thus indicating the nearness of the car, she could have accelerated her steps and reached a point of safety. It cannot be said that, as matter of law, this plaintiff was guilty of contributory negligence, since it appears she had seen the car at a distance which she thought sufficient to enable her to cross in safety, and her judgment was at fault only because the unusual and exceptional thing occurred,—of the motorman, after the signal was given him to stop, and while she was in plain sight, crossing the track, failing to stop or to slow down at the crossing, or to give warning, by ringing the bell, of his intention to proceed at undiminished speed. There are two circumstances which would, no doubt, have some weight with the jury, namely, that . after seeing the car when near the track, and starting to cross it diagonally, the plaintiff did not again look, and that during such time she heard the rumbling of the wheels. The rumbling, in itself, however, would not be a warning, because she had heard this when the ■ car was half a block away, and she expected such sound to continue until the car stopped at the crossing. And, as to her failure to look . at the car, she could not very well do so, considering the direction in which she was walking, without turning nearly around; and not only would this have been difficult, but it would have tended to retard her progress, and thus increase the risk of reaching the sidewalk in safety. These circumstances, as stated, are to be considered by the jury; but they are not, in our opinion, sufficient to justify the inference, as matter of law, that the plaintiff was guilty of contributory negligence.

Upon the whole case, therefore, we think that the question of contributory negligence, as well as of the defendant’s negligence, should -have been submitted to the jury, and that the dismissal of the complaint at the close of the plaintiff’s case was error, for which the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

■ HATCH and INGRAHAM, JJ., concur. VAN BRUNT, P. J., . and MCLAUGHLIN, J., dissent.