90 N.Y.S. 818 | N.Y. App. Div. | 1904
Lead Opinion
On this appeal the debatable point is whether or not the question of the intestate’s contributory negligence should have been submitted to the jury. The plaintiff gave evidence tending to show that
It is our opinion, however, that the proof adduced by the plaintiff was sufficient to present a question of fact on this branch of the case for the jury’s determination, and that the judgment should be reversed. In Woodworth v. N. Y. C. & H. R. R. R. Co. (55 App. Div. 23; affd., 170 N. Y. 589) there were no eye-witnesses of the accident which resulted in the death of the plaintiff’s intestate, but it was shown in the evidence that the deceased was an educated, temperate man, forty-five years old, with good eyesight and hearing, careful and cautious in disposition and temperament, and a verdict for the plaintiff was sustained, it being held that the question of whether the deceased was guilty of contributory negligence was properly
The case at bar, however, possesses features which lead more strongly to the conclusion that the evidence presents the question of fact for the jury, inasmuch as the strict rule requiring a user of a highway to look and listen before crossing a steam railway track, does not obtain to its fullest extent in the case of those who cross the tracks of street surface railways in the streets of villages and cities. The failure of the plaintiff to show that his intestate looked in the direction from which the car that struck him came cannot be deemed an omission fatal to his right to go to the jury, for it cannot be said as matter of law that had he looked he would have been chargeable with contributory negligence in proceeding across the tracks. The car was approximately 15Ó feet away, and he was but 13 feet from the middle of the track on which he was struck; before reaching the point where the accident occurred the car must needs have crossed a public thoroughfare in the city of Hew York, and it would not have been error for the jury to have drawn the inference that the intestate acted as an ordinarily prudent and careful person would have conducted himself in the situation, taking into account that the lad proceeded on his way as one would ordinarily cross the street, looking in the direction toward which he was destined. A similar question was discussed in Kitay v. Brooklyn, Q. C. & S. R. R. Co. (23 App. Div. 228), in which this court unanimously affirmed a verdict in favor of the plaintiff for damages for the killing of his intestate. In that case it appeared from the testimony of the only witness who actually saw
The rule as applicable to such facts as are disclosed by the record in this case may be generally stated to be that the failure of proof that a pedestrian, crossing the tracks of a street surface railroad upon the public streets of a village or city, looked to observe the approach of a street car, does not establish contributory negligence per se, where the approaching car is at such a distance that, had he in fact looked, he would have been warranted in assuming personal safety in crossing. We have examined Pinder v. Brooklyn Heights R. R. Co. (173 N. Y. 519) and Thompson v. B. R. Co. (145 id. 196), and are convinced that neither the facts nor the reasoning in those cases are authority for the respondent’s contention that the question of the deceased’s contributory negligence was properly taken from the jury.
The judgment should be reversed and a new trial granted, costs to abide the event.
All concurred, except Woodward, J., who read' for affirmance, with whom Jerks, J., concurred in separate memorandum.
Dissenting Opinion
(dissenting):
The simple question presented on this appeal is whether there was any evidence to support the necessarily affirmative contention of the plaintiff that his intestate was free from negligence contributing to the accident. There is some uncertainty in the testimony of the plaintiff’s witnesses as to the exact location of the defendant’s cars at the time of this accident, and although there were five eye-witnesses called in support of the complaint, not one of them points out a single act on the part of the plaintiff’s intestate from which any fair inference of care can be .drawn. This is a nonsuit, and the plaintiff is entitled to all fair inferences, but the rule of law requires that the plaintiff must show affirmatively that his intestate was free from contributory negligence, and this fact does not appear from any reasonable construction of the evidence.
It is true there are cases in the books where there were no eyewitnesses in which the courts have been disposed to accept very slight evidence of care, but we know of no case where there were numerous eye-witnesses in which it has been held that the plaintiff
Jenks, J., concurred.
Concurrence Opinion
(concurring in the dissent of Woodward, J.) :
I concur in the dissent of Woodward, J., whose discussion leaves little to be said. The casualty was not due to miscalculation; but to inattention, and the question involved is not that of a mistake in •calculation based upon the relative speeds of traveler and of car, but as to the act of the traveler in stepping onto the track of the ear when that car was almost upon him. The plaintiff was bound to establish the exercise of some care. (Pinder v. Brooklyn Heights R. R. Co., 173 N. Y. 519.) If plaintiff’s intestate, as he was about to step on the track, had seen the car then almost upon him, he could not assume that it would lessen its speed in accord with any general custom, for it had passed over the crossing, or that if he continued on his way and if the motorman thereupon used every means to arrest the car a collision would thereby be averted. If he saw the car at this moment, he was careless in walking onto its track. If he did not see it under the circumstances, he was equally careless. (Strickland v. N. Y. C. & H. R. R. R. Co., 88 App. Div. 367; Little v. Third Avenue R. R. Co., 83 id. 330; Jackson v.
, The learned counsel for the appellant would discriminate the Punder Case (supra), in that there was no feature of a crosswalk in it, and that it appeared that the street was wholly unimproved. And he points to the subsequent affirmance of Stevens v. Union Railway Co. (75 App. Div. 602) in 176 New York, 607, and the ruling of this court in Lane v. Brooklyn Heights R. R. Co. (85 App. Div. 85). But in the case at bar the lad was not upon a crosswalk. The car had stopped at a crosswalk, and the lad had alighted from the rear of the car and had passed behind it. He was seeking to reach his master’s shop, which was twenty-live feet distant from the crosswalk. Even at the distance of ten feet, or a car’s length from the crosswalk, he could not. disregard all precautions, for at the very crosswalk itself his rights Were but equal, not paramount. While the learned counsel for the appellant cites many cases, he relies mainly upon Stevens v. Union Railway Co. (supra), and the cases cited by the court in its opinion therein. Stevens’ case. was decided by a divided court and was affirmed by the Court of Appeals without opinion by a vote of four to three (176 N. Y. 607). The Appellate Division in its opinion did not discuss the question of contributory negligence, but cited Pelletreau v. Metropolitan Street R. Co. (74 App. Div. 192) as authority upon the facts. But. in Petletreau’s case there is testimony that the plaintiff looked at the beginning of her walk, that she followed a companion who, preceding her by six feet, crossed without haste in safety, and that the plaintiff’s vision was obstructed by the car from which she had alighted.
Judgment reversed and new trial granted, costs to abide the event.