186 A.D. 66 | N.Y. App. Div. | 1919
Lead Opinion
The question to be determined is whether the plaintiff was guilty of contributory negligence as a matter of law. The jury was warranted in finding from the evidence, which is summarised in the opinion of Mr. Justice Merrell, and which is practically uncontradicted, that the plaintiff while proceeding westerly across Lenox avenue on the downtown or southerly crosswalk of One Hundred and Twenty-third street, looked to the north just before attempting to cross the first rail of the downtown trolley railroad track, saw a car rapidly approaching, with its front just above the northerly crosswalk, concluded that he could pass safely, proceeded on his way at a “ good fast gait ” and was struck by the car just as he was stepping off from the westerly rail. The car which was approaching' the crossing was at least twenty-nine feet to the north of the plaintiff when he attempted to cross. The relative rights and duties of pedestrians and motormen at street crossings are so well settled that it seems almost trite to restate the law; yet it is the logical approach to a correct conclusion. Referring to the rights of pedestrians and drivers in the use of city street crossings, Judge Werner said in Baker v. Close (204 N. Y. 92): “ There the right of passage is common to all, and both footmen and drivers are bound to exercise reasonable care for their own safety and the safety of others upon the street. The rigorous rule applicable to steam railroad crossings is necessarily relaxed at the usual street crossings, and the footman is not required, as matter of law, to look both ways and listen, but only to exercise such reasonable care as the case requires, for he has the right to assume that a driver will also exercise due care and approach the crossing with his vehicle under proper control. (Buhrens v. Dry Dock, E. B. & B. R. R. Company, 53 Hun, 571; affd., 125 N. Y. 702.) At such street crossings both pedestrians and drivers are required to exercise that degree of prudence
Such difficulty as there is in applying these rules grows out of giving proper effect to the “ right ” of the pedestrian " to assume that a driver will also exercise due care and approach the crossing with his vehicle under proper control.” Previous to the important decision rendered in Knapp v. Barrett (216 N. Y. 226), there was considerable diversity of opinion as to whether or not one who sees an approaching vehicle or car, miscalculates the danger of attempting to pass in front of it, and is injured, may still be free from fault. It was said that he might in Buhrens v. Dry Dock, etc., R. R. Co. (supra), but the learned counsel for the appellant contends that “ The general language used in the opinion must be deemed to have been uttered with reference to the special facts of the case,” and complains that what was said in that case has caused considerable confusion, has been frequently misapplied, and should not be adopted as a scientifically correct statement of the law. But Judge Cardozo has carefully and precisely restated the law governing the relative duties of pedestrians and drivers of vehicles in the city streets in the recent case of Knapp v. Barrett (supra), and has expressly adopted the principle of the Buhrens case, saying: “ The law does not even say that because he sees a wagon approaching, he must stop till it has passed. He may go forward unless it is close upon him; and whether he is negligent in going forward, will be a question for the jury. If he has used his eyes, and has miscalculated the danger, he
Mr. Justice Merrell says, and lays great stress upon it, that “ here the plaintiff saw that the car was not going to stop at the crossing, but was bearing down upon him with undiminished speed.” I find no evidence justifying the conclusion that plaintiff “ saw that the car was not going to stop,” but the point is not whether the car was going to “ stop;” it is whether, if under control, it would be slowed down so as to avoid running over him unnecessarily. It is true that the car approached the crossing with undiminished speed, but what becomes of the rule, so often reiterated, that the pedestrian has the “ right ” to assume that the motorman is approaching the crossing with his car under proper control? This is one factor that enters largely into the pedestrian’s calculation andjietermines whether in attempting to cross he is merely taking a chance or is exercising judgment. A car “ under proper control ” can be appreciably slowed down within twenty-nine feet. This plaintiff almost escaped being struck, although no effort was made to slacken the speed of the car. The jury undoubtedly inferred, as they were warranted in doing, that the plaintiff assumed, as he had a right to do, that, being lawfully upon the street, the motorman would not deliberately run him down, but on the contrary would apply his brakes and slow down the car, which, if it had been done in this case, would, as the jury were entitled to find from the evidence, have avoided the accident. My own view is that the plaintiff was careless, not in venturing to cross in front of the car, but in failing to hasten his steps and endeavor to avoid being struck, and as a juryman I should have so found. But that is not the question in this court, for the law commits the determination of that fact to the jury. Neither is this a case that can be said to be against the weight of the evidence, for the evidence is practically uncontradicted and hfonly remains to draw the inference of fact.
In no event, as it seems to me, is this court warranted in rlismigRing the complaint, for after a previous verdict in favor
Laughlin and Page, JJ., concurred; Clarke, P. J., and Merrell, J., dissented.
Dissenting Opinion
This is an appeal by the defendant from a judgment in plaintiff’s favor for personal injuries.
Plaintiff, a resident of the city of New York, a steamfitter
Lenox avenue runs in practically a northerly and southerly course, and is eighty feet wide from curb to curb. One Hundred and Twenty-third street, running an easterly and westerly course, crosses Lenox avenue and, from curb to curb, is twenty-nine feet eight inches wide. Defendant’s double-track surface line runs about midway between curbs on Lenox avenue, the east track being the north-bound, and the westerly being the south-bound, track. From the easterly curb to the east rail of the north-bound trolley track it is thirty-two feet. The distance between the rails of each of the trolley tracks is approximately five feet. Between the two tracks there is a strip of about five feet in width. The distance from the westerly rail of the south-bound track to the westerly curb of Lenox avenue is thirty-one feet eight inches.
Plaintiff testifies that, on the night of the accident, which was Sunday, he left his home to go to a neighboring liquor store to procure a pint can of beer to be drunk with his supper. After procuring the beer he came down Lenox avenue on the easterly side, crossed One Hundred and Twenty-third street, and then started across Lenox avenue toward the west at the southerly crosswalk of One Hundred and Twenty-third street. He testified that before starting across Lenox avenue he looked up and down the street; that he saw nothing in the southerly direction, but bn looking northerly he saw a trolley car approaching on the south-bound or westerly track somewhere between One Hundred and Twenty-fifth and One Hundred and Twenty-fourth streets, and that it was running rapidly toward him. The street was well lighted and plaintiff’s vision was clear. He then testifies that after looking northward and seeing the rapidly approaching car, he started across Lenox avenue. At that time there was a north-bound car which had stopped right at the crossing, but
The question was submitted to the jury as to whether or not the injuries to plaintiff arose from the negligence of the defendant’s motorman, and the jury was asked to determine the question whether or not the motorman was driving the car in a reasonably careful and prudent manner. The question as to whether or not the plaintiff himself was guilty of such carelessness on his part as would prevent a recovery herein was also submitted to the jury as a question of fact.
The appellant contends that the evidence presented such a state of facts as to render the plaintiff chargeable with negligence as matter of law, and that under the proofs he was not entitled to a verdict.
The plaintiff insists that he had a right to go to the jury upon the evidence, and that it was for the jury to say, upon all the evidence, whether or not, in attempting to cross the track in front of the car which plaintiff saw rapidly approaching, he was acting in a reasonably careful and prudent manner.
The learned trial court adopted the plaintiff’s theory, the case was submitted to the jury, both upon the question of the defendant’s negligence and upon the question of plaintiff’s
This is the second trial of the action. On the first trial the case was submitted to the jury upon an erroneous charge. The jury found a verdict for the plaintiff for $6,000, and on appeal the judgment entered thereon was reversed and a new trial granted, because of such error. (176 App. Div. 490.)
I think the facts in this case require a reversal of the judgment, and that we must hold that the plaintiff was himself guilty of negligence which contributed to the accident which befell him, and which must preclude any recovery herein. The law is well settled in this State that where one sees a rapidly approaching car and takes the chance of getting across the track ahead of it, under circumstances similar to those disclosed by the evidence here, and is struck, he is guilty of contributory negligence as matter of law, and cannot recover for damages sustained by reason of his carelessness. Plaintiff appreciated that the car, which he had first seen between One Hundred and Twenty-fourth and One Hundred and Twenty-fifth streets, was approaching at a very rapid speed. In traveling a good fast gait, as he testifies, from the easterly curb of Lenox avenue to the strip between the trolley tracks, a distance of less than forty feet, and in again looking toward the north at the approaching car, he saw that it had covered the distance of over a block and was then upon the northerly crosswalk of One Hundred and Twenty-third street and still coming on at undiminished speed, and when he then, without waiting for the rapidly approaching car to pass; continued on without increasing his speed, and was struck before he had entirely crossed the track, it cannot be said that he acted with that reasonable care and prudence which the law required of him. When he lást looked, as he was about to step upon the south-bound track, he saw the car thereon but twenty-nine feet away and coming on with undiminished speed. His knowledge of the situation would not have been increased through any warning from the car, the rapid approach of which he fully appreciated. Common prudence would have impelled him
While in Ploxin v. Brooklyn Heights R. R. Co. the accident occurred in the middle of a block, I do not think such circumstance distinguishes that case from the case at bar, because here the plaintiff saw that the car was not going to stop at the crossing, but was bearing down upon him with
The case of Woodward v. New York Railways Co. (supra) arose in this department. In that case the driver of a horse attached.to a light vehicle attempted to cross a trolley track in front of a street car, which the driver saw approaching a block away, and was hit by the car before getting across. The driver brought action to recover for injuries which she sustained, and which she alleged were caused solely by the negligence of the defendant street car company, and at Trial Term recovered a verdict. Upon appeal from the judgment entered thereon, this Appellate Division held, by a divided court, that the driver was guilty of contributory negligence as matter of law and could not recover, and the complaint was dismissed. The Court of Appeals affirmed the judgment of this court, without opinion, by a decision handed down May 25, 1917, several months after the determination of the former appeal herein.
The respondent urges, with considerable plausibility, that the reversal of the judgment entered upon the first verdict in this case was based upon the erroneous charge of the court upon the trial, and that, in basing the reversal upon such grounds and directing a new trial, this court had held, by implication, at least, that the circumstances presented a question of fact for the determination of the jury as to the contributory negligence of the plaintiff. The case of Ploxin v. Brooklyn Heights R. R. Co. (supra), in its facts so identical with the case at bar, was decided by the Appellate Division of another department, and is reported in a brief syllabus in an inconspicuous place in volume 171 of the Appellate Division Reports, 925. At the time this case was here on the former appeal, the unanimous affirmance of the Ploxin case in the Court of Appeals had not been announced, and the Court of Appeals had not decided the Woodward case. Upon the determination of the former appeal in the case at bar this court believed that the evidence had been submitted to
Entertaining the opinion that, under the evidence, plaintiff cannot recover, it is unnecessary to consider errors which the appellant claims occurred in the trial court’s charge in submitting the case to the jury.
The judgment and order appealed from should be reversed, with costs, and plaintiff’s complaint dismissed, with costs.
Clarke, P. J., concurred.
Judgment and order affirmed, with costs.