176 A.D. 490 | N.Y. App. Div. | 1917
The plaintiff, a man fifty-eight years old, was struck by a car of the defendant while he was crossing Lenox avenue at One Hundred and Twenty-third street, in the city of New York, about nine-thirty o’clock on the night of March 21, 1915. The plaintiff testified that as he started to cross from the east to the west side of Lenox avenue, he looked to the north and saw a south-bound car at a point somewhere between One Hundred and Twenty-fourth street and One Hundred and Twenty-fifth street, with no other trolleys or vehicles between him and that car. The car was coming at a high rate of speed and gave no warning or signal by gong or otherwise of its approach. As plaintiff stepped down from the curb a northbound car, which had been at a standstill, started up and had completely passed him by the time the plaintiff reached the easterly rail of the north-bound track. As he stepped across the westerly rail of the north-bound track he looked again to the north and saw a south-bound car with the front end at the northerly crosswalk. Plaintiff continued on, and, as he was somewhere between the rails of the south-bound track, the car, which had come across One Hundred and Twenty-third street without reducing its speed, struck and injured him.
At one part of the charge the trial court said: “ The law is that if the plaintiff is negligent at all and that negligence contributed to this accident, he cannot recover in this case, no matter how negligent the motorman may have been, so the question really is this, ‘ was the plaintiff guilty of any negligent act which contributed to the accident, or was it an error of judgment?’ Was he justified under all the circumstances surrounding the situation in making an estimate that he would
Within this rule of law, therefore, the jury was improperly allowed to test the plaintiff’s negligence by his own judgment and not by the judgment of a man of ordinary prudence, and for that error the judgment and order must be reversed and a new trial granted, with costs to appellant to abide the event.
Scott, Laughlin, Dowling and Davis, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.