95 N.Y.S. 7 | N.Y. App. Div. | 1905
The plaintiff, while waiting for one of the defendant’s southbound electric cars to pass, was struck and injured by the coiled fender at the rear end of the car as it turned from'Madison avenue
It is contended that negligence on the part of the railroad company can be predicated Upon the facts in this case under the decision in Suse v. Metropolitan Street R. Co. (80 App. Div. 24). I cannot find anything in the record to support the statement of the learned trial court that the motorman saw the plaintiff as the car approached or at any time. It may be assumed, however, that in the discharge of his duties he was bound to see him. Nevertheless it seems to me that under the circumstances, the plaintiff being an adult, apparently in full possession of health and vigor, the motorman might rightfully assume that the plaintiff, if necessary, as the car turned the curve would draw back far enough to avoid being struck. (Hayden v. Fair Haven & W. R. Co., 76 Conn. 355, 364.)
It is true that in the Suse case, above cited, Mr. Justice McLaughlin, speaking for the majority of the court, said that the railroad company, the appellant therein, “ was just as much obligated to prevent & collision with the rear end of the ear as it was with the front end,
Even if we assume, however, that a more stringent rule is asserted in Suse v. Metropolitan Street R. Co. (supra), I think that the complaint' in the present case ought to have been dismissed by reason of the plaintiff’s failure to prove the absence of contributory negligence on his part. In Garvey v. Rhode Island Co. (58 Atl. Rep. 456) the plaintiff, according to her complaint, had taken a position on the street where the swing or overhang of the car came in contact with her person and the Supreme Court of Rhode Island held as follows: “Every person who is of sufficient intelligence to be capable of being left alone in the streets must be. presumed to take notice of the obvious fact that the body of a street car, in rounding a curve, must necessarily swing, out-some little distance from the track on the outside of the curve. And for one to place .himself within reach of the swing or overhang of a car while it is in motion is as much a bar to his recovery in an action against the company as though he had negligently placed himself in front of a moving car and been injured thereby.” In Widmer v. West End Street Railway (158 Mass. 49) the, plaintiff, while standing near a street car track waiting for a ear to go by, was struck on, the. right temple by the handle on the rear dasher of the car as it went around a corner; and the Supreme Judicial Court of Massachusetts held that there was no reason why the driver should not drive past the plain
' I do not see how the plaintiff in the case at bar can be acquitted of contributory negligence unless we disregard the principle applied in these- decisions. The learned trial judge, in denying the defendant’s motion for a new trial, expressed the opinion that if the plaintiff had been so familiar with the situation at Madison avenue and Forty-second street as to fully appreciate the. risk he was taking,,, he ought to have been nonsuited for his contributory negligence; but he thought the case was properly left to the jury inasmuch as they might imply from the evidence that he was not thus familiar with the locality. I cannot concur in this view. The plaintiff’s own testimony show's, that he was as fully acquainted with all the circumstances and the situation as he would have been if he had visited the place a hundred times. The accident occurred at six o’clock on the evening of November 27,1901. The plaintiff testified that there were lights just as Avere usual every night, and although he stated that he had never been at that placo at night before, tine inference from his testimony is inevitable, from the position of the car Avhen he first saw it and tlie manner of its approach, that the existence of the curve must have been plainly visible to him, and that the accident was due chiefly, if not solely, to his own imprudence in failing to observe the simple and obvious precaution of stepping back
For these reasons I am in favor of a reversal of this judgment.
. Hirschberg, P. J., Rich and Miller, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.