119 N.Y.S. 785 | N.Y. App. Div. | 1909
Lead Opinion
One of the witnesses called for the plaintiff testified that he first saw the deceased between eleven and half-past eleven o’clock on the night of the 17th of March, 1908, crossing from the west side of Ninth avenue at Forty-first street. The car evidently was in plain sight, coming very fast. He testified that the deceased stepped on the track in front of the approaching car ; that he was struck when stepping on the track; that as soon as he got on the rail the car hit him. This witness was the only one who had seen
It follows that the judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.
McLaughlin and Scott, JJ., concurred; Laughlin and Houghton, JJ., dissented.
Dissenting Opinion
Lam of opinion that the evidence: was sufficient to take the case to the jury and to sustain the verdict; both on the main issues and
The decedent was a strong, healthy, intelligent man, in the enjoyment of all his faculties and forty-two years of age. He was in the employ of the defendant as a motorman, and had been employed by the street railroads in the city of Hew York upwards of twenty-five years, and was earning twenty-five dollars per week. He was both temperate and industrious. He resided at 419 West Fifty-third street, and on the 17th day of March, 1908, he was off duty. At about eleven o’clock in the evening of that day, while crossing the north-bound track of the surface street railway company of which the defendants are the receivers, on Hintli avenue on the northerly crosswalk of Forty-first street, the decedent was struck by a north-bound car and was instantly killed. The only eye-witnesses to the accident were strangers to him and, therefore, we have no information as to wheré he had been or whither he was going, excepting as it may be ’ inferred from the time of night and the location of his residence, which was twelve blocks northerly of the point of the accident. Just before the accident he was seen walking easterly at an ordinary pace, crossing Hintli avenue on the northerly crosswalk of Forty-first street, and as he stepped onto the north-bound track he looked toward the car, which was then approaching from the south and at a point below the southerly crosswalk of Forty-first street, according to the testimony of some of the witnesses, one or two houses below that point, and he held up his right hand, as if to signal the motorman to stop. It is probable that he intended to board the car which was going in the direction of his home. There was an electric light at the northwest corner of Forty-first street and Hintli avenue, and the elevated railway, supported by ordinary pillars, passes over the avenue at the locus in quo. The evidence tends to show that the car was coming very rapidly, that it did not slow down at the crossing and that the motorman did not have it under control, as was his duty in passing over the crossing, for it struck the decedent as soon as he had taken one or two steps on the track and while he was between the rails of the track, and pushed him along the track and rolled him under the car from that point to the middle of the block between Forty-first , street and Forty-second
I, therefore, vote for affirmance.
Houghton, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.