109 N.Y.S. 97 | N.Y. App. Div. | 1908
This is an appeal from a judgment entered upon a nonsuit granted at the close of the plaintiff’s evidence, in an action brought
At the place of the accident Webster avenue runs north and south.' The defendant has two tracks on opposite sides of the street, the north-bound track on the east side, the south-bound on the west side, with the wagon track between. There is no sidewalk on either side of the street, but at the time of the accident there was a footpath between the rails of the north-bound track on the east side of the street and pedestrians usually walked there. R was the defendant’s custom to run north-bound cars exclusively on the east side and sontli-bound cars on the west side. A quarter of a mile north of the place of the accident Yonkers avenue runs into Webster avenue from the west. A sewer was being laid in Yonkers avenue, the excavation at the point of intersection of the two streets obstructed the defendant’s south-bound track on the west side of Webster avenue, and because of that obstruction the north and south-bound cars were both run on the north-bound track. How long before the accident the custom had been departed from does not appeal", except as one witness testified, “ This sewer had been digging up Yonkers Avenue for some time, quite a few weeks.” But it does not follow that the track was obstructed all of that time, if that be material. The deceased lived a mile north of said Harlem station, and there is no evidence that he knew of the temporary change in the manner of running the cars. On the day of the accident he, in company with his daughter, had been to Hew York shopping, and on returning reached said Harlem station at West Mount Vernon at about eight o’clock. Upon alighting from the car at the station, the daughter left the deceased standing at the
There is no question respecting the negligence of the motorman ; indeed, it would seem that his negligence was gross, for although running a car contrary to custom, where he must be presumed to have known that pedestrians were in the habit of walking, he ran down the deceased without even giving him a signal to get off the track, although by reason of the arc light directly over, him he was plainly visible. There is evidence that there was a headlight on the rear of the car; it does not appear whether there was one in front. The evident altercation with the driver of the wagon with which the motorman had just collided accounts for the fact that he neither saw nor warned the deceased.
While the law is settled in this State that there is no presumption
The judgment should be reversed.
Jenks, Hookeb, G-aynob and Rich, JJ., concurred.
Judgment and order reversed and new trial .granted, costs to abide the event.