50 N.Y.S. 284 | N.Y. App. Div. | 1898
Lead Opinion
The principles of law relating to negligence have been frequently formulated and are well settled, but our difficulty arises in their
We all agree that there was proof given by the plaintiff which made it proper to submit the question of the defendant’s negligence to the jury, because it appeared that the. gripman in the management of his car, instead of performing his duty by observing objects ahead of him upon the track, had his attention diverted by looking at some women who were on the sidewalk. As said in Ellick v. Metropolitan Street Railway Co. (15 App. Div. 557) : “ The obligation which rested upon the defendant was to so manage the car as to have it under control at the time when it approached and crossed
While, therefore, the plaintiff sustained the burden resting upon her on this branch of the case, with reference to fhe defendant’s negligence, we have the serious question presented, whether she sustained the further burden • of showing that the deceased was free from negligence on his own • part contributing to the injuries. It has been, held that the burden of the question of contributory negligence is successfully borne if the facts and circumstances, coupled with the occurrence of the accident, are consistent with the exercise of some care on his part, such as might reasonably be expected of him under the circumstances. (Tolman v. Syracuse R. R. Co., 98 N. Y. 203.) And again: “ Passengers must cross in front of moving cars, and they must judge in any given case whether it is safe to attempt it, and contributory negligence cannot be predicated of the mere- fact of an attempt to cross in front of a moving car. Otherwise, one could never cross the track of a street railroad where cars ran at a rapid rate of speed and close together.” (Doller v. Union Ry. Co., 7 App. Div. 283, 287.) This statement of the law, however, is to be regarded as supplemented by what was said in Cowan v. Third Ave. R. R. Co. (16 N. Y. St. Repr. 916) : “ The necessity "upon the part of a passenger in crossing a railway in the city of New York to look to ascertain whether there are vehicles coming which may endanger the crossing is too well settled to need authority. It is the duty of every such passenger to make a reasonably vigilant use of their eyes and ears .to ascertain whether in crossing a street any danger will be incurred.”
Applying these principles, if there were any evidence in the case from which it could be inferred that the deceased before entering upon the easterly track had used his eyes or ears to ascertain the position of approaching cars, and after doing so had pursued a course that any reasonably prudent man might have followed in the belief that he could cross in safety, then, though he might have been in error as to his conclusion, and, instead "of crossing in safety, might have been
In other words, the conduct of the deceased after he had placed himself in a position of danger, even though the course he then adopted was not the most prudent, would not constitute negligence per se. But the question still remains whether his getting into the place of danger was the .result of his own contributory negligence. As has been said, the burden was upon the plaintiff of showing that such was not the case by direct proof, or by other facts and circumstances from which the .jury could infer it. In other words, the jury are not to be left to guess or speculate as to the conduct of the person injured, but the burden placed upon the plaintiff requires that some evidence should be produced from which the inference can be drawn that the person injured “ exercised some degree of caution ” (Dobert v. Troy City R. R. Co., 91 Hun, 28) or some care on his part such as might reasonably be expected of him under the circumstances. (Tolman v. Syracuse R, R. Co., supra.) It will be seen, therefore, that although the extent to which the plaintiff must show care and caution is slight, there must, unless the rule is to be entirely abrogated, be some evidence ; and it would hardly be claimed that this was supported by a showing that one approached and crossed the tracks of a city railroad, the' motive power of which was electricity or cable, without making any attempt to look or listen for the approach of a car. The liability must be predicated upon the conduct of the parties prior to the creation of the dangerous situation. Eor if it is with their subsequent conduct that we are concerned, then, while there is sufficient to relieve the deceased from the charge of contributory negligence, it also appears that the defendant was then free from negligence, because the ■ uncontradicted, evidence is that the gripman rang his gong and applied the brake and did all
Pedestrians have the right to cross over, streets and avenues, and it is obligatory upon railroad companies in using the streets not to interfere with such right. This duty of looking out for passersby is greater when cars are approaching a crossing, because at those points people in fact are more likely to be met with, and it is incumbent upon those in charge .of the cars to have them under such control and to run them at such a rate of speed as to enable those who are crossing prudently to do so with complete safety. We are not Inclined to relax the rule as to the degree of .care required of those'
In the case at bar, considering the negligence of the defendant, which was abundantly proven, we should have hesitated to interfere with the verdict if, upon any view, there had been any evidence from which the jury could have been justified in inferring that the decedent did anything, either in the .way of increasing his speed or using'his eyes and ears, thus manifesting that he was on the lookout ■ for or conscious of an approaching car, or that while crossing the. tracks he did aught to avoid creating the situation from which his injuries flowed. The absence of such evidence, we think, is fatal to the judgment, and it should, therefore, be reversed and a new-trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., and McLaughlin, J., concurred; Ingraham and Patterson, JJ., dissented.
Dissenting Opinion
The action is brought to recover for the damage caused to the-next of kin of Thomas Ewing by reason of his death, caused by one of the cars of the defendant on January 20, 1896. The jury found a verdict for the plaintiff, and from a judgment entered on that verdict defendant appeals. One of the plaintiff’s witnesses testified that as this car on its way uptown approached Eighteenth': street the motorman was watching two women upon the sidewalk; that when it was about thirty feet from the lower crossing the plaintiff’s intestate started to walk across the avenue; that there was a: car on the down track of the defendant’s road at Eighteenth street: which had stopped on the southerly crossing on -the avenue, and that, just as that car stopped, the plaintiff’s intestate started to cross the uptown track. The car going uptown was about five feet from the plaintiff’s intestate when the gripman looked forward upon the track after having had. his attention engrossed by the women on the: sidewalk. The deceased- was then about the middle of the track.
The evidence offered on the part of the defendant tended to show that, as this car in question was going uptown at its usual rate of speed, the deceased started to cross the track with his head down, looking neither to the right nor to the left; that he stepped on the track immediately in front of this car and was struck by the car-; that the gripman rang the hell several times before the deceased stepped upon the track. At the end of the plaintiff’s case the defendant moved to dismiss the complaint on the ground that the evidence failed to show that the defendant was guilty of negligence, and that it also failed to show that the plaintiff’s intestate was free from contributory negligence. This .motion was renewed at the conclusion of the case, and the court was then asked to direct , a verdict for the defendant upon the same ground. An exception to the denial of these motions raises the principal point to be determined -upon this appeal.
The more difficult question arises upon the claim by the defendant that the evidence did not show that the deceased was free from contributory negligence. In determining this question we must consider the location at the time of the accident, the nature of the motive power used and the control of the motorman over the car; the fact is that in these avenues of a- city a pedestrian about to cross has not only, to watch for the cars on the tracks, but also to avoid vehicles using the avenue, and it is quite evident that his attention cannot be entirely concentrated upon the cars. He has a right to cross the avenue, and the defendant must so operate its road as to. give one exercising the care of a prudent person an opportunity to
As. was stated by the Court of Appeals in the case of Parsons v. N. Y. C. & H. R. Railroad Co. (113 N. Y. 364): “ The question is whether the injured party, under all of the circumstances of the case, exercised that degree of care and caution which prudent persons of ordinary intelligence usually exercise under like circumstances: This rule must in all cases, except those marked by gross and inexcusable negligence, render the question involved one of fact for the jury.” We cannot say as a matter of law that the act of the deceased was “ marked by gross and inexcusable negligence.” He attempted to cross this avenue at a time of the day when these cars were passing almost' continuously. He crossed in front of an approaching car which the jury might have found could have been easily stopped after he was either upon the track, or about to go upon the track, if the motorman had been looking; but even at the speed with which the car was coming he could have crossed in safety, but for the fact that one of the other cars of the defendant’s road stopped in such a way as to require him to remain longer upon the track in order to pass around it, and he was struck by the car just as he was stepping off the track. Under such circumstances it was not contributory negligence, as a matter of law, for him to attempt to cross, as the injury was occasioned, not because he had not sufficient time to cross directly, but because he did not have sufficient time to walk around the end of the car which had stopped in such a way as to block the crosswalk.' Under such circumstances it seems to me that it was a case for the jury to determine whether, considering the
I think, therefore, that the court below was right in denying the motion to dismiss the complaint or to direct a verdict for the defendant.
Counsel for appellant also relied upon the refusal of the court to charge several requests presented. The first one to which our attention is called is as follows: “ That it was the duty of the deceased in crossing the defendant’s tracks to look and listen for the approach of a car and endeavor, in so far as reasonable in his power, to avoid coming in contact with it, and if he failed in this duty he is guilty of contributory negligence and your verdict shall be for the defendant.” This request the court refused, but modified it by stating that h was his duty to look when he - went on the track, leaving it to the jury to say' whether, under the circumstances^ an ordinarily prudent man should have listened, and if “yon find he did not of • course he was guilty of contributory negligence.” I think this request went much too far, and that the charge of the court was as favorable to the defendant as was justified by the facts of the case.
The distinction between a street car and a steam railroad, running at a high rate of speed through the country, as to the degree of care which a person about to cross the track must exercise to avoid being guilty of contributory negligence, has been often adverted to. A person crossing a steam railroad where the trains run at a high rate of speed is bound, as a matter of law to stop, look and listen for an ' approaching train, and his failure to do so is, as a matter of law, contributory negligence. . On crossing a city street, however, a different rule applies. Under such circumstances he is bound to use his faculties to ascertain whether there are vehieles coming and to exercise vigilance to keep out of the way of an approaching car, but he has not only to avoid cars, but other vehicles in the street; and it cannot be said, as a matter of law, that he is bound to listen for the approach of a car in- addition to looking for it. Under the circumstances in this case th'e approaching car was in full sight. It was broad daylight. Nothing obstructed its view, and there is nothing to show that a look at the car did not convey to this deceased all of the information as to its position that he would have
The other alleged error in the charge related to the two requests as to the condition of the roadway under foot, but under the circumstances I do not think the defendant was entitled to the instruction asked for." Counsel for the defendant first requested the court to charge as follows: “ If you believe that the condition of the roadway under foot was not such as to require a man of - the age of the deceased, using reasonable care for his own safety, to keep his eyes toward the ground in crossing the street, your verdict, shall be for the defendant.” The second request was that there was no proof in the case that the condition of the roadway was such as to require the deceased, exercising reasonable care, to fix his attention upon it while crossing the street. The evidence is that it was a muggy day, that the road was wet and slippery. It further appeared by the evidence of the defendant’s witnesses that when the deceased crossed the street and crossed the track his eyes were down, fixed upon the roadway. Whether or not it was negligence for him to walk with his eyes fixed upon the ground was a question for the jury, and in determining that question they were entitled to take into consideration the fact that it was a wet day and that the street was slippery. The mere fact that a man looked towards the roadway as he crossed the track was not, as a matter of law, contributory negligence, even if the roadway was perfect. If he did not look at all to notice an approaching train, or did not use any means to ascertain the location of the car before he attempted to cross, he was guilty of contributory negligence; but the mere fact that he looked
There are several, objections to the ruling upon the evidence to which attention is called by counsel for the appellant. I have examined them and do not think that 'any of them would, justify a reversal of the judgment, or are of sufficient importance to require notice. ■ Upon the whole case, while the question is a close one, and while the evidence as to the means adopted by the deceased to observe the approaching car are not' very satisfactory, I think the question, both as to the negligence of the defendant and the contributory negligence on the part of the plaintiff’s intestate, was a question for the jury which was fairly submitted in a charge as favorable to the defendant as' it could rightfully request, and that no error was committed which requires a reversal of the judgment.
Patterson, j., concurred.
judgment reversed, new trial ordered, costs to appellant to abide event.