185 A.D. 320 | N.Y. App. Div. | 1918
The plaintiff, a woman of mature years, testifies that as she stood upon a street corner she saw a street surface car of the defendant at standstill at an opposite corner of the street, receiving and discharging passengers; that shortly thereafter she left the corner and attempted to pass through
There is no proof that the plaintiff looked for the car after she left the curb. She testifies that nothing would have prevented her from seeing the car all of the time. The distance from curb to the third rail was 19 feet 3| inches. The distance between the curb lines of the cross street was 34 feet.
In Knapp v. Barrett (216 N. Y. 231) the Court of Appeals declares that it has said “ in effect that the extent to which one must look may not be defined in advance by any hard and fast formula, but must be measured by the circumstances of the particular case.” And in another part of the opinion the court say: “ The law does not say how often he must look or precisely how far, or when or from where. If, for example, he looks as he starts to cross, and the way seems clear, he is not bound as a matter of law to look again.” In the light of Knapp’s Case (supra) we are not prepared to say that the plaintiff was guilty of contributory negligence as matter of law, although we are of the opinion that she did not show herself sufficiently free from contributory negligence to justify a verdict in her favor.
The proof of the negligence assigned — the working of the car “at a high and dangerous rate of speed ”— is unsatisfactory. The plaintiff testifies.that the car was coming “ full force,” whatever that may mean. Of the plaintiff’s witnesses, Mrs. Raymond says the car was coming “ very fast,” and Mr. McCarthy testifies that the car was “ going fast.” None of these witnesses was an expert. Evidence of this character is admissible, but not very cogent, and its probative value depends much upon the experience and capacity of the witness and the circumstances that indicate the correctness of such characterization. In the case at bar, none of these witnesses
The judgment and order are reversed and a new trial is granted, costs to abide the event.
Jenks, P. J., Thomas, Rich, Putnam and Blackmar, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.