44 N.Y.S. 462 | N.Y. App. Div. | 1897
Lead Opinion
The case was tried at a Trial Term in October, 1896. It is an action for damages sustained by the plaintiff by reason of the negligence of the defendant. It was submitted to the jury in a careful charge by the court, which was unexceptionable, and to which but three unimportant exceptions were taken, not argued or relied upon upon this appeal. There was one exception taken to the admission of evidence, but it is quite as unimportant as the exceptions to the charge. The only serious point made upon the trial is that upon the facts there was not sufficient proof to sustain the verdict, and for that reason it was error to send the case to the jury. The case, however, having been submitted to the jury, and their verdict having been given in favor of the plaintiff, she has the right to have this appeal considered upon the most favorable view that can be taken of the evidence adduced in her behalf and upon the theory that every fact as to which there was a contest was found in her favor by the jury. If there was evidence to sustain the facts so found, and if those facts are sufficient to establish her cause of action, she can hold the verdict which she obtained from the jury. In examining questions of this kind, it must be remembered that foot passengers as well as horsemen and those who operate street cars have equally a lawful right to use the street for all proper purposes and at all proper places. It is quite true that street cars which run upon rails laid down in the street and cannot turn out, and which are large and heavy vehicles moved by machinery, necessarily have to a considerable extent the right of way, and it is the duty of pedestrians to use reasonable care to avoid them ; but yet there is a corresponding duty on the part of the drivers of street cars, who must, in the exercise of due care, so control the speed of their cars and give such notice of the approach of their cars at places where pedestrians are using the street that such pedestrians can avoid them in the exercise of proper care. This duty is all the more stringently to be insisted upon in the case of corporations like the defendant, whose cars are of great weight and are run at a comparatively high rate of speed, so that great care''on the part of the gripman, as well as on the part of pedestrians, is required to avoid serious, if not fatal, accidents. These rules are so well settled as not to require the citation of any authority to establish them, and
As has been said, the facts in this case must be taken as much in favor of the plaintiff as the evidence would warrant. The accident occurred between half-past seven and half-past eight o’clock on the evening of May 4, 1894. It was after sundown, but was not yet dark. The plaintiff was struck by a car of the defendant’s, going up town, as she was attempting to cross Third avenue, at the crossing of Ninety-fifth street. It was testified by the plaintiff’s witnesses that, at the time she was struck, she was near or upon the north crosswalk. Her daughter, who was the first witness, testified positively that at the time of the collision she was at the crosswalk when she was struck. Her son testified to the same thing, as did the plaintiff herself. A disinterested witness, Michael Bogara, called on behalf of the plaintiff, testified positively, on his direct examination, that he saw her hit by the street car at the north crosswalk, and, while strenuous efforts were made upon cross-examination to get him to contradict himself upon that point, he persisted in the testimony, and his evidence was not shaken. This testimony was contradicted by the testimony of the witnesses on the part of the defendant, but it must be assumed that the jury found the fact to be as alleged and proved by the plaintiff.
It appeared that the plaintiff started from the west side of the street to go to the east side. When she approached the car tracks, a car was going down town upon the westerly track. That car was followed by a truck. The plaintiff stood near the track until the car and the truck had passed her; she then crossed the west track, and apparently became aware of a car coming from the south up town upon the east track. She stood between the two tracks while another car from the north passed down and the car from the south passed up. Behind the car going north, at a short distance, which is not precisely stated, was another car, also going north. This car, as it seems, was seen by the plaintiff before she attempted to cross the east track in front of it. Although she saw it approaching, she, nevertheless, attempted to cross the track in front of it, but she was struck while so doing, and it is necessary to examine particularly into the situation of affairs when she made that attempt to enable us to ascertain whether there was negligence
The plaintiff said, upon her examination, that she saw this car coming, and she thought she could cross; that the car was not going so fast when she stood between the tracks and saw it at the lower crossing, but it was going faster when it knocked her down. She said that she saw the car all the time, and she saw how fast it was coming, but, of course, that testimony must be taken in connection with the fact that she was almost directly in front of the car, and it would be difficult for her either to gauge the speed of the car or to say accurately whether it increased its speed after she started to cross the track. Of course, if her evidence is to be taken as absolutely conclusive, as seems to be insisted by the appellant, then as the jury found in her favor, it must be taken as conclusive, not only as to those points which tell against her, but as to" those points which tell for her, and taken in that way it establishes that there was an increase of speed in the car from the time she stood between the tracks and saw it at the crossing just below her, and the time when it struck her and knocked her down. But there is other evidence as to the speed of this car which is of considerable force. The conductor said that the car was going at the ordinary speed. Whether it was going as fast as the cable went he was not able to say. His testimony was corroborated by O’Connell, called on behalf of the defendant, who testified substantially to the same thing. There was other testimony to the effect that the car was going somewhat slowly, but all this testimony,' it must be remembered, was the impression formed on the mind of each witness at the particular time when he saw it, and whether that particular time was the moment when it struck the plaintiff, or shortly before, and just about the time she started to cross the track, is not in all cases easy to be ascertained. In actions like this, as is well known, there almost always are considerable discrepancies in the testimony of witnesses on points of time, rate of speed and distance, but these discrepancies are caused more by inability to judge accurately, and by the fact that witnesses do not all refer to the same time at which a thing occurred, than by any real difference in the fact, or even as to their judgment as to the fact. In cases like this, where the question is a question of fast or slow, it is impossible to say that a con
It appeared from the testimony that there were about two cars on each block. It was necessary for one attempting to cross the track to cross somewhat closely in front of any street car, and it was not contributory negligence, as a matter of law, to do so, unless the speed of the- car was so great and its proximity so close that the pedestrian would not probably be able to escape it. As is well
The daughter of the plaintiff testified that no- signal of the approach of this car was given, and the jury were at liberty to believe her testimony in that regard. If that fact be taken in connection with the further fact that the speed of the car was accelerated after the plaintiff attempted to cross the track, and when she must have been in plain sight of the gripman, we have a condition of affairs which would clearly warrant the jury in coming to a conclusion that there was negligence on the part of the defendant. A very careful consideration of the other evidence leads us to the conclusion that, upon the whole case, the court was required to send the case to the jury, and the jury were warranted in the conclusion which they reached.
The judgment should be affirmed, with costs.
Van Brunt, P. J., and O’Brien, J., concurred; Patterson and Ingraham, JJ., dissented.
Dissenting Opinion
The plaintiff, who describes herself as a strong, active woman, while attempting to cross the tracks of the Third Avenue Railroad Company, in the city of New York, was struck by a car and injured. The defendant insists that there was no evidence to justify a finding by the jury that the accident was caused by its negligence, or that the plaintiff was free from contributory negligence. The case presents the usual conflict of testimony. The jury having found for the plaintiff, the plaintiff is entitled to have the story told by her and her witnesses accepted, and we have then to determine whether, accepting that story as true, the finding that the defendant was negligent and that plaintiff was free from contributory negligence can be sustained. The plaintiff testified that as she was attempting to cross Third avenue from the northwest corner of Ninety-sixth street, she walked to the westerly track, waited there until a cable car fol
The learned trial judge held that, if this were all the evidence, it would be his duty to dismiss the complaint upon the ground that the plaintiff took the risk of crossing in front of the car and must bear the consequences of the injury. He, however, held that there was evidence from which the jury could find that the speed of the car was increased, and if that was so, then she was not guilty of contributory negligence as a matter of law, but that it was a question of fact for the jury. It is this decision of the learned judge that the defendant challenges upon this appeal and which we have to consider. The court quite correctly charged the jury that the gripman had the right to assume that the plaintiff would keep out of the way of the car, and to act upon that assumption as long as there was no appearance or indication that the plaintiff would put herself in a position of danger from the car, “ but, from the moment the gripman realized, or in the exercise of proper care and caution, and by keeping a proper lookout or otherwise, should have realized, that the plaintiff put herself in such a dangerous position, from that moment, and not before, it became the duty of the gripman to use all the means which a careful and prudent gripman would have exercised under the same circumstances to avoid injury to the plaintiff.” Is there any evidence to show that this gripman did not exercise-the care and caution of a careful and prudent gripman from the moment that the plaintiff put herself in front of the approaching car ? My examination of the testimony has convinced me that there is no such evidence. In the first place, there is no evidence to show how far the car was from the plaintiff at the time she attempted to cross the track, except the evidence of the witnesses of the defendant, which placed her but a few feet in front of the car. The plaintiff’s case depended upon the testimony of three witnesses, herself, her daughter and her son, a boy twelve years of age. The daughter was the first witness. She said that the plaintiff crossed the first track and
The next witness called by the plaintiff was the plaintiff’s son, a boy twelve years of age. He says that he stood on the northwest corner of Ninety-fifth street; that his mother left him there and started to cross the street upon the sidewalk; that she got as far as the first track; that a car came from up town and she had to wait; there was a truck behind and she had to wait; then the car came from down town up town, and this car knocked her down; that he saw the car when it was at the lower crossing at Ninety-fifth street, and that his mother was then in the middle of the two tracks; that was before she attempted to cross the east tracks; but this boy does not testify as to where the north-bound car that struck his mother was when she walked upon the track and attempted to cross, and there was nothing to show how far off that car then was.
The plaintiff was also called as a witness and testified. She said that she stood between the two tracks and saw a car on the lower crossing coming up; that she looked and thought that she could cross; that she started to cross and got to the last track, the last rail of the up-town track, when the car struck her and threw her down; she remembered that the car was going fast when it struck her and knocked her down, and the car was not going so fast when she stood between the two tracks and saw it at the lower crossing. She
There were several witnesses called by the defendant who seemed to be entirely disinterested. Becherer testified that as the plaintiff got to the west track the ear was going south, and she paused and let it pass and started across'; as she crossed over she found herself ahnost directly in front of the car, and she hesitated and the car struck her and threw her under the wheels ; that the car was about eight or ten feet away from her when she stepped upon the rail; and this witness was the first that got to her after the injury and helped to take her from under the car. The conductor of the car testified that he was in the car at the time collecting fares ; that he heard a scream, and the car gave a sudden stop; was stopped so suddenly that the passengers were thrown forward. Carney, another witness for the defendant, said that he saw the plaintiff run ahead; the car was probably ten or twelve feet from her; she rushed ahead and the car knocked her down; and the witness assisted in taking her from under the car. It appears that this car was then going on a down grade, the fall between Ninety-fifth
The rule is well settled that a railroad company’s cars have a preference in the streets and that pedestrians must use reasonable care to keep out of their way. (See Fenton v. Second Ave. R. R. Co., 126 N. Y. 625.) . Thus plaintiff stood in a safe place outside of the track. She had already allowed one car to pass her, saw another car approaching, and when it was ten or twelve feet from her she attempted to run across in front of it. The injury was the direct result of her act in running across in front of the car, and not the result of any negligence on the part of the gripman or other agent of the defendant. Whether the speed of the car increased or not after it left the south corner of Ninety-fifth street is immaterial. There is nothing to show that the speed of the car was increased between the time that the plaintiff stepped upon the track and the time she was struck, and nothing to show that, after the plaintiff stepped upon the track, any action of the gripman, however prompt, could have averted the accident. So far as appears, he did everything, he could to prevent the accident. If the plaintiff had simply waited in her place of safety .for a few seconds to allow the car to pass she would not have been injured; and her injury in this case must be said to be, as in the case of Fenton v. Second Ave. R. R. Co. (supra), due to her own carelessness, or it was a pure accident, and in either event the defendant cannot be held responsible for it.
The case of McGuire v. Third Ave. R. R. Co. (9 App. Div. 529), cited by the plaintiff, is not in point. There the court say that the situation was a peculiar one; .that the plaintiff’s intestate’s view of the car which caused the injury was obstructed by a brewery
The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.
Patterson, J., concurred.
Judgment affirmed, with costs.
