Kennedy v. Third Avenue Railroad

| N.Y. App. Div. | Jul 1, 1898

Van Brunt, P. J.:

This action was brought to recover damages for personal in juries. The plaintiff was driving a wagon down Third avenue, and on attempting to cross the avenue at or near Nineteenth street, a northbound cable car of the defendant ran into the wagon, throwing the plaintiff from the seat and causing the injuries in question.

It is urged upon this appeal that the complaint should have been dismissed upon the plaintiff’s evidence, and that the verdict was grossly against the weight of evidence. It is claimed upon the part of the appellant that the plaintiff’s story, as told by him, was incoherent and incredible, and that in all material points he was contradicted by six disinterested witnesses. An examination of the evidence, however, shows that upon the defendant’s own testimony the verdict can be sustained. Some of the six disinterested witnesses relied upon by the defendant did not see the plaintiff when he commenced to cross the track, but only saw him when he had gotten partially across and the car was upon him. Others of the defendant’s witnesses say that he. was from fifteen to twenty feet from the car when he attempted to cross, and the uncontradicted evidence in the case is that the gripman could stop the car within a distance of eight feet. It is to be observed that the gripman of this car, when speaking of the rate of speed at which the plaintiff was driving, says that he was driving at the high rate of five or six miles an hour, and that his car was going at the ordinary rate of eight miles an hour, and that even going at that moderate rate of speed, for a cable car, he could stop it in eight feet. The cable car had no absolute right to the exclusive use of the street. Pedestrians and vehicles have some rights which even cable cars are bound to respect. They have a right to cross the street even though a cable car may be in sight. If not, then the city would be divided into as many zones as there are lines of power cars running the length of the island, and nobody could ever get across. It was not incumbent upon the driver of this vehicle to wait until no cable car was in sight before he attempted to cross. He had a right to cross the track when there was a reasonable opportunity so to do, even though it required the cable car to slacken its speed in order that it might not upset his vehicle. The rights of drivers of vehicles and those of gripmen of cable cars are reciprocal; and the gripman of a cable car is bound to use as much diligence to avoid running into a vehicle which is crossing its track as the driver of the vehicle is to avoid running into a cable car which may be crossing its path. It seems to be assumed upon the part of the defendant that, unless a vehicle can certainly entirely clear a. cable car approaching at a high rate of speed, its driver has no right to attempt to cross, and that the car is in no case bound to slacken its speed. We know of no such rule of the road.

It is evident, from the defendant’s own testimony, that the grip-man had time enough to stop his car after he had seen the plaintiff attempting to cross the track and before he collided with him. Instead of that, his car did not stop for at least three feet after striking the wagon, when it ought to have stopped within from five to ten, and perhaps fifteen, feet from the wagon, if reasonable diligence had been used by the gripman. The plaintiff had a right to suppose, when he went upon the track, that the gripman would give him the ordinary rights which one»vehicle owes to another. Instead of that, the gripman evidently did not attempt to stop his car until he saw that a collision was inevitable, when he used all his power, but it was too late. Under these circumstances, it was a clear case to submit to the jury, and there was ample evidence of negligence upon the part of the gripman of the defendant in the management of his car.

We think, therefore, that the judgment and order should be affirmed, with costs.

Rumsey, Patterson and Inqraiiam, JJ., concurred.

Judgment and order affirmed, with costs.