39 N.Y.S. 440 | N.Y. App. Div. | 1896
From the plaintiff’s testimony it is evident that his injury was, at least in part, the result of his negligence. He was a passenger on one of the defendant’s electric cars running from Albany 'to Troy. The defendant’s road has two tracks, the cars for Troy running on the easterly and those for Albany on the westerly track. At Ward’s lane, about half a mile from the city of Albany, the car stopped to permit the plaintiff and his companion, Hughes, to alight. The plaintiff alighted from the easterly side of the car, preceded by Hughes, and as soon as he reached the ground the car in which he had been riding started and rapidly proceeded on its way northerly. To reach his residence it was necessary to cross both tracks, with the location of which, and with the running of the cars, he was familiar. After he had crossed the easterly track he came to a space of five feet between that and the westerly track. One of the defendant’s cars coming down from Troy on the westerly track was then approaching. It was about ten o’clock at night and dark. This down car was lighted with electric light, had a large headlight, and Hughes says “ was one glare of light.” While the evidence furnishes very strong grounds for the belief that this car could have been seen before the plaintiff had crossed the easterly track, it is beyond cpiestion that from his position between the two tracks it was plainly visible. It is inconceivable that the trolley post, eight inches in diameter, midway between the two tracks, five feet apart, could have obstructed his vision. Instead of remaining between the tracks, or stepping back upon the easterly track until the approaching car had passed, the plaintiff proceeded to cross the westerly track, and, when nearly over, was struck by the car, his companion, who was just ahead, having reached the other side in safety. The law is too well settled to require the citation of any
In Dobert v. Troy City Railway Company, recently decided by the General Term in this department, the learned judge who wrote the prevailing opinion says : “ The evidence discloses that the intestate on passing around the rear end of the car on which he had been riding, looked in the direction of the approaching ca/r, * * * and which car, as would appear from the evidence, was hidden from the view of the intestate until the- very moment of his fatal collision with it” lie also says it was “ upon a crowded thoroughfare,” and it did “ not appear that he was familiar 'with this crossing.” In respect to those facts there is between that case and this an obvious and essential distinction.
The judgment should be reversed and a new trial granted, with costs to abide the event.
All concurred, except Landoe and Heerioic, JJ., not sitting.
Judgment and order reversed and a new trial granted, costs to abide the event.