156 N.Y.S. 766 | N.Y. App. Term. | 1916
Plaintiffs’ wagon in charge of its driver and drawn by a single horse was proceeding at a walk on a downgrade easterly on 138th street. The street runs east and west. The wagon was either on the east-bound car track or near it toward the south curb. The street is 100 feet wide, divided approximately as follows: Each side
At the southwest corner of 138th street and Brook avenue is a large fence and shed connected with the new subway construction. Defendant’s truck was loading dirt at this shed from the excavation. It was facing north on the left or westerly side of Brook avenue, namely, facing the wrong way on the wrong side of the street. It pulled out that way, and, according to the chauffeur of the truck, he began turning into 138th street when he had gone about 8 feet in that street. The precise position of the shed in relation to the sidewalks of 138th street and of Brook avenue, respectively, was not brought out very clearly; but apparently the view along the westerly curb of Brook avenue is not obstructed for the distance of 20 feet covered by the south sidewalk of 138th street.
Plaintiffs’ driver says that he heard no horn, although defendant’s chauffeur says he blew his “Klaxton” before he started. The collision actually occurred some six or seven feet west of the line of the westerly curb of Brook avenue, or, as one witness puts it, “maybe three feet over the stoop line where the people pass,” meaning as I take it, substantially on the line of the pedestrian crossing, running north and south.
Plaintiffs’ driver testified:
“Q. Did you look before you came to the corner to see whether any wagons were coming from the other side of the street? A. Yes, sir.”
And on cross-examination he testified:
“Q. You were looking in the general direction in which you were driving? A. Yes, sir.”
Judgment reversed, and a new trial granted, with $30 costs to appellant to abide the event. All concur.