58 N.Y.S. 1039 | N.Y. App. Div. | 1899
The action was brought to recover for personal injuries sustained by the plaintiff, a boy between • twelve and thirteen years' of age while he was. crossing from the eást- to the west side of Columbus avenue between Eighty-ninth and Ninetieth streets, on the night of
The plaintiff testified that he started to cross from the east to the west side of the avenue when he was about twenty-five feet south of the Ninetieth street crossing, and walked out as far as one of the elevated railroad posts and stopped and looked up and down ; that he saw a car with a light on it coming very fast down town, then at the middle of the block above, and also saw a north-bound car a block and a half below; that he then continued his way walking across the street, looking down town ■—• the reason that he didn’t look up being that he thought he had plenty of time to get across ahead of the down-town car, but if he had looked up, could have gotten out of the way; that the down-town car struck him just as he was stepping off the down-town track, and threw him, and the car caught him under the platform and dragged him, before running over him, about one hundred feet; that lie did not hear any bell; that he called out for help while he was being dragged along.
Louise Schaubach said she was near a millinery store (twentydive feet from Ninetieth street, as shown by the map in evidence), and saw the boy walking across the street towards her, but did not see him stop at any time; that he was looking up and down to see if there was any car, and that there was a car midway between Ninety-first and Ninetieth streets coming down very fast, but there was no other car; that no signal was given, and the car within six or eight seconds struck the boy, dragged him and then ran over him. Map-tin Hesserinan, a'clerk in a grocery store, testified that while at work he heard a cry and turned around, and the car had stopped ; that the boy was picked up right in back of it, the car having gone entirely over him ; that the car stopped just across from No. 607, which was fifty-four to sixty feet from Eighty-ninth street.
Oarll Boney, a companion of the plaintiff, testified that he was standing on the northwest corner of Ninetieth street, and witnessed the accident; that he saw the boy crossing the track and the
The gripman of the car, A. E.j Miller,-testified that he was going at the speed of the cable, which he has since learned is from six to eight miles an hour ; that about fifty feet south of N inetieth street he passed another car going north, and just then the boy shot out from behind the north-bound car;; that he was ringing his bell as he passed the car, and continued to| do so when' lie' saw the boy, ahd stopped the car as soon as possible; that the left side.of the car struck the boy, but he was not ¡dragged any distance, for the car stopped about 100 to 125 feet north of Eighty-ninth street; that the block is about 200' feet long ; tljat the boy lay about eight feet in the rear of the car, which was thirty feet long; that it was a rainy night; that he had been on the toad a month; and was working. as •an extra man, having spent twenty-one days learning.
Anothér gripman testified-that a car such as the one' in question, going at that rate and oh such) a night, could be stopped within twenty-five to thirty-five feet, j An engiiieér testified that • it'-w^ thirty-five feet from the pillar pqiiited out to him by the plaintiff to
Upon this evidence the appellant insists that there , were two theories, upon either of which the defendant’s liability could be predicated — the first being the negligence of the gripman in permitting the car to strike and throw the boy, and the second that, even if the plaintiff’s own negligence exposed him to the risk of injury, the gripman, after he became aware of the plaintiff’s danger, was under the legal obligation to use care in avoiding injury to him. Were the first alone involved we should be inclined to the view reached by the learned trial judge, that the plaintiff could not recover for the reason that, apart from defendant’s negligence, the boy’s negligence contributed to bring about the accident. Upon the other theory, however, as to whether the obligation which rested upon the defendant to use reasonable care to avoid injuring the boy when he was placed in a position of danger was discharged, we think there was a sufficient conflict of evidence to make it a question for the jury.
The car in question had no fender in front,, but it was furnished with a fender upon the platform, placed just before the front wheels, against or upon which, the inference can fairly be drawn, the boy rested for a period of time while being carried a distance which is variously estimated by the witnesses. The question presented upon this appeal, which is dependent, to a great extent, upon the distance traversed by the car after the boy was struck, is whether the trial judge was right in holding, as matter of law, that the gripman discharged the obligation resting upon him towards the boy while in a position of danger.
If - the gripman’s testimony stood alone, there might be reason for answering this question affirmatively; but it is to be remembered that he was called for the purpose of testifying for the plaintiff as to the speed of the cable, and was, on all other matters, used as a witness for the defense, and the plaintiff was not, therefore, concluded by his testimony. He stated that there was a north-bound car, in passing which he rung the bell, and that from behind the passing car the boy suddenly appeared and was struck when about 50 feet south of Ninetieth street, and that his car was stopped 100
Although some of the witnesses, in describing how far the car Went after striking the boy, give the distance as from 100 to 150 feet, and others testify that the car was stopped very soon after the cry for help was given by the boy, it does not necessarily follow that there is here an inconsistency because it was also stated that the car had previously traversed a distance of 116 feet in but six or eight seconds.
Again, if we take the testimony of those who say the' car stopped at a distance of seventy-five feet from Eighty-ninth street and credit the gripman’s statement that the boy was struck fifty feet south of Ninetieth street, it will be seen that the car must have gone seventy-five feet after it struck the boy, although, according to the testimony of a former railroad employee who had experience as a grip-man, the ear even on such a night and in the then condition of the tracks, could have been stopped within twenty-five to thirty-five feet. If this evidence was credible — and that was for the jury, to determine in the absence of contradiction — there was no sufficient explanation given why the car should have gone, the distance testified to by the witnesses after striking the boy. The gripman of the car did not appear to have had much experience, having been in charge of a car but a week, and,! according to his own statement, he was going with a free cable at the time of the accident,.although he did not know how fast that was.
We have stated enough to show that — if we give to the plaintiff, as we must, the benefit of the most favorable inferences to be drawn from the testimony — there was a prima facie case made
We think the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event..
. Yak Brunt, P. J., Barrett, Rumset and Patterson, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.