86 N.Y.S. 461 | N.Y. App. Div. | 1904
On a former appeal a judgment in favor of the plaintiff in this case was reversed on account of an exception to a refusal to charge. Two of the members of the court concurred upon the ground that the complaint should- have been dismissed for the plaintiff’s failure-to show freedom from contributory negligence, but the majority gave no expression to their views On that question. (McKinley v. Met. St. Ry. Co., 77 App. Div. 256.) Upon the new trial there: was no material change in the facts. The accident occurred on the evening of the 25th day of May, 1899, while it was yet daylight and before the street lamps were lighted. The plaintiff was struck and injured by a south-bound car of the defendant on the westerly street railway track of Sixth avenue, either on the line of the southerly sidewalk of Forty-first street or within thirty feet southerly thereof. The plaintiff was crossing Sixth avenue from the southwesterly corner. According to his testimony, which in this regard is corroborated by that of two other witnesses, he was passing directly or nearly directly across the avenue toward Bryant Park, and was struck on, or only a few feet south of, the line of the crosswalk; but according to testimony of witnesses on the part of the defendant he was crossing diagonally toward the southeast and was struck about twenty-thrée or thirty feet below the line of the crosswalk. A witness called by the plaintiff testified that he was walking down the westerly side of Sixth avenue from Forty-second street, his destination being the Herald Building; that he observed a truck coming in the same direction along the southbound track ; that this truck turned into Forty-first street toward Broadway to the north of the elevated pillar opposite the center of Forty-first street; that he passed behind the truck as it turned into Forty-first' street, and in doing so walked two or three feet to the' left out of his line of travel; that when he ha'd reached a point-within five or six feet of the southerly curb of Forty-first street he heard a shout, and' on looking saw that the plaintiff had just been struck by this car, just on, or a few feet below, the line of crossing from the southerly sidewalk of Forty-first street; but that he did
The plaintiff testified that he had come from Eighth avenue along the southerly side of Forty-first street and when he reached the curb at Sixth avenue he observed this truck in the middle of the block between Forty-first and Forty ^second streets and that there was no car on the south-bound track between him and Forty-second street; that he then proceeded to cross and when he came within one or two feet of the first rail of the south-bound track he looked to the north again; that the truck was then turning off and he could see about seventy-five feet behind the truck and there was no car on the track between him and a point seventy-five feet north of where the truck turned off; that he then “ started to cross the street. I took one step when I was hit, one step over the rail. The fender of the car hit me, I suppose. Before this car hit me, I see it when it was five or six feet from me. I started to turn to the right to jump back. Then I was down under the fender. I was struck, and I was down. Before I saw this car within five or six feet of me, I did not see the car. I did not hear anything. I did not hear any gong.” On cross-examination he testified that both his hearing and eyesight were good ; that he looked for a car two or three times besides looking from the curb and when one or two feet from the track; that one of these times was when he was within four, five or six feet of the rail; that at this time he thought he could see clear through to Forty-second street but was sure that he could see seventy-five feet, and he further testified: “ When I got' a foot or two from the track, the first rail, I say I looked again. I could, see tip the track about seventy-five feet from where I was. I suppose I could at that time see clear to 42d Street. The truck didn’t prevent me. The truck did not prevent me from seeing clear to 42d Street. I could see through it. .There was nothing at that time to prevent me, when I looked, from seeing clear up 42d Street; ” that “ when I was • stepping over the track, I glanced that way and saw the car right on top of me. * * ■ * And in that moment
If the testimony of the witness, who was on his way to the Herald Building, is to be believed, then the truck had passed off the track and proceeded on its way toward Broadway a .sufficient length of time before the accident to afford no obstruction to the plaintiff’s view, and even according to the plaintiff’s testimony it did not obstruct his view. With no obstruction to his view, with nothing to divert his attention, with go’od eyesight and sufficient light, his testimony is inherently improbable. The accident could not have happened in the manner described by him. The inference is irresistible- either that he did not look at all or did not look with care. (Fuller v. Dederick, 35 App. Div. 93; Madigan v. Third Ave. R. R. Co., 68 id. 123 ; 80 id. 626 ; Fiddler v. N. Y. C. & H. R. R. R. Co., 64 id. 95 ; Swart v. N. Y. C. & H. R. R. R. Co., 81 id. 402 ; affd., 177 N. Y. 529.) As well might he say that there was no elevated railway in the avenue as to say in effect that when he was within one or two feet of the rail of the westerly track there was no car on that track between him and Forty-second street, or even a point seventy-five feet beyond where the truck turned off the track and that while in the act of taking the next step over the rail of that track he was struck by a car coming from the north. This is not a case where the credibility of a witness is involved which takes the, case to the jury. His testimony is impeached by physical facts about which there is and can be no controversy. The car was there and. almost upon him as he stepped upon the track or he would not have been struck while stepping over the first rail.
It follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred..
Judgment and order reversed, new trial ordered, costs to appellant to abide event.