200 A.D. 75 | N.Y. App. Div. | 1922
This action was brought to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant’s chauffeur in driving its truck against her in a public street before she reached a place of safety after alighting from a street car. The plaintiff testified that on the afternoon of June 5, 1919, she and her sister-in-law and niece, three and a half years of age, were passengers on an east-bound street car on Thirty-fourth street, borough of Manhattan, New York, and when the car stopped westerly of Fifth avenue opposite the Waldorf Hotel, evidently at or about the usual stopping place, they proceeded to alight from the rear platform, and she stepped off onto the pavement first and immediately turned around, and standing with her left foot on the pavement and facing the car, placed her right foot on the step and took hold of the grab handle of the car with one hand and was in the act of assisting the child from the platform of the car to the street, when she was hit on her left ankle; that she immediately turned around to the right and saw opposite her shoulder a motor truck with the defendant’s name on it passing easterly; that the motor truck also struck her left arm and side, causing great pain, and she was assisted to the sidewalk and placed in a chair, and her shoe, which was a low pump, was removed and the heel of the shoe had been completely taken off by the contact of the truck and her dress was torn, and the left side of her heel was cut open, and the wound continued to discharge for a long time; that the chauffeur who was driving the truck was brought to her immediately after the accident and she recognized him in court; that she was unable to use her left foot and was taken home in a taxicab and summoned a doctor and was confined to the house six or eight weeks, and was unable to use her left leg during that time, and also had difficulty, which continued down to the time of the trial, with her left ankle, and suffered pain in her arm and left side for about a week; that she did not see the truck until she was hit, and did not remember whether or not she looked either way before stepping off the car; that this was the
The trial court was of opinion that the evidence was insufficient to warrant the jury in finding that the plaintiff’s injuries were inflicted by the defendant’s motor truck. The material evidence on that point has been stated. Some of it tends directly to show that the truck came in contact with the plaintiff, and all of it warrants an inference to that effect, and, therefore, the jury might have so found. (Chisholm v. State, 141 N. Y. 246; Hart v. Hudson River Bridge Co., 80 id. 622; Miller v. Uvalde Asphalt Paving Co., 134 App. Div. 212; Inglese v. N. Y., N. H. & H. R. R. Co., 133 id. 198; Brand v. Borden’s Condensed Milk Co., 89 id. 188; Smith v. Brooklyn Heights R. R. Co., 82 id. 531.) The evidence also presented questions of fact as to the defendant’s negligence and plaintiff’s freedom from contributory negligence. Subdivision 3 of section 17 of chapter 24 of the Code of Ordinances prohibits motor vehicles from passing or approaching within eight feet of a street car which has been stopped for the purpose of receiving or discharging passengers so long as the street car nas
Clarke, P. J., Dowling, Page and Merrell, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.