57 N.Y.S. 326 | N.Y. App. Div. | 1899
This action is brought to recover damages for injuries received by the plaintiff by reason of a collision with one of the defendant’s-■trolley cars which struck him as he was attempting to drive across the highway on which the defendant’s track was laid. Upon the-trial the court, after hearing the evidence of the plaintiff, dismissed the complaint, and from the judgment entered upon that dismissal this appeal is brought.
The place where the collision occurred was a public highway known as Yan Fest’s road in the county of Westchester. It was-shortly after nine o’clock at night of the Ytk of July, 1895. At the place of the occurrence a private driveway, from a summer resort known as Sulzer’s Park, debouches into the highway on the north side. The tracks of the defendant are laid upon the north side of the highway so that the track of a car going west is within a very few feet of the fence. On the east side of the private road, at its intersection with the highway, there stands a building extending along the highway about thirty feet, and running back forty-five, feet along the private road. The front of this building is within ten feet of the defendant’s track, and this space of ten feet is diminished by a stoop extending a few feet in front of the building. Back of this building, and on the east side of the private driveway, there are, as the plaintiff testified, trees and bushes which obstruct, the view to a very considerable extent to the eastwarcj, the direction from which the car was coming that inflicted the injury upon the plaintiff. At the time of the occurrence, it was quite dark. The plaintiff was driving, at a walk, a quiet horse down the private road towards the highway. He was surrounded by a lai'ge number of people who were also going from the park to the street-. As was
As the complaint was dismissed at the close of the plaintiff’s case, he is entitled, upon an examination of that ruling, to the most favorable inference which can be deduced from the evidence, and if any of the facts are contested or doubtful, it must be assumed that they would have been found by the jury most favorably for the plaintiff. (Rehberg v. The Mayor, 91 N. Y. 137, 141.)
As bearing upon the question of the defendant’s negligence, the jury might have found that this car approached the place where the private road intersected the highway at a high rate of speed — certainly fifteen miles an hour and upwards; that no gong was sounded nor other signal made to notify people upon the highway of its approach, and that going at that rate of speed the car drove upon the crossing without giving any signal and struck the plaintiff’s wagon, demolishing it and in juring the plaintiff. These facts would not only be sufficient, in our judgment, to require the jury to find that the defendant was negligent, but would go far to convict the griptnan of criminal negligence if he were indicted for that crime. Although the road from Sulzer’s Park to the highway was a private road, yet it appears from the evidence that the persons frequenting the park were generally at this hour of the night making their way out upon the highway. It must be presumed that the defendant’s gripman and conductors were aware of the situation of this park and knew of the location of this crossing. The privileges and corelative duties of a street car company upon a highway are well settled. It is not expected that the street car company, although operating its cars by machinery 'of high power and running at a high rate of speed, will go along the highway without stopping and without paying attention to the reciprocal rights of other passengers upon the highway, as a steam railroad is accustomed to do and must do to some extent. (2 Shear. & Redf. Neg. [5th ed.] § 485a.) But the street railroad, occupying as it does the highway which is free to all people equally with itself, and in which it has no exclusive rights, is bound to run its cars with proper care over the highway, with due regard for the safety of all people who have occasion and
In considering the question of the plaintiff’s contributory negligence, this duty of the defendant must not be lost sight of. The plaintiff was not called upon as matter of law to watch and listen for the approach of this car using the highway as he would have been called upon to watch and listen at a country crossing of a railroad company going upon its own tracks, where it had an exclusive
The fact that this was a private driveway, upon which the learned justice at the Trial Term seems to have laid considerable stress, was not controlling in this connection, because the jury might have found from the evidence that it was a usual thing at that time of night fer a large number of people to be coming out of this driveway upon the highway, and that the railroad company’s employees, who were traveling along the highway, were aware of that usual condition of affairs. But even if that were not so, and the plaintiff was coming out of his own grounds, he still had the right to assume that the street car would be managed with a due regard for his right to go upon the highway, and it would be for the jury to say, in this case, whether, in view of all the circumstances,
Barrett and Patterson, JJ., concurred ; McLaughlin, J., dissented.
Judgment reversed, new trial ordered, costs to appellant to abide event.