Pelletreau v. Metropolitan Street Railway Co.

77 N.Y.S. 386 | N.Y. App. Div. | 1902

O’Brien, J.:

The insistence of the defendant upon this appeal as upon the trial is that the plaintiff failed to present evidence sufficient to warrant the inference that the motorman was negligent or that the plaintiff was free from contributory negligence, and that the proof offered shows on the contrary that the accident was one which only the plaintiff could have averted. It is claimed that immediately before the plaintiff was struck, it was impossible, owing to the presence of the uptown car which had stopped at the north crossing, either for the motorman to see her or for her to see the car, and it is contended that even were this not so, and there had been no obstacle in the way, then both would have been equally negligent in proceeding to the place of the collision.

A like contention was sustained in McCloskey v. Metropolitan St. Ry. Co. (67 App. Div. 617) where the pedestrian came upon the track from behind an elevated pillar at a street crossing and was immediately struck. A distinction, however, is to be drawn between such a case where no particular reason arises from the surrounding circumstances for the motorman’s apprehending danger of any kind, and one like this wherein the motorman from the conditions existing by the very presence of a car which has stopped at the crossing, has reason to believe that passengers are alighting therefrom or others may be going over at that point. In approaching a crossing, such as this — one of the most crowded in the city — he should have given some warning of his approach or have had his car under control so as to avoid running down those who desired to cross. Here it appears that the uptown car had been stopped for sometime, sufficient to .permit several passengers to alight from the rear door, and, while it was there, and the plaintiff was passing behind it, another passenger had preceded her across the street directly in front of the advancing ear, thus again apprising the motorman that persons were likely to emerge upon his track. In spite of such notice and with knowledge on his part that he was approaching one of the most frequented crossings, however, the motorman failed, according to the evidence, to slacken his speed in the slightest . degree or to sound the gong in warning of his approach'. Upon those facts, therefore, we think there was sufficient to support the inference of the defendant’s negligence.

In the' recent case of Schoener v. Metropolitan St. Ry. Co. (72 App. Div. 23), where the plaintiff was injured by being struck by defendant’s south-bound car while he was attempting to cross the ' Bowery and after passing in front of another south-bound car upon a parallel track, it was said: “ A duty rested upon the motorman to have the car under control as it approached the crossing and this duty was increased if it be true, as contended by the defendant, that his view of the crossing was obstructed by the Third Avenue car, for which reason he should have exercised more care. He could not approach the crossing at a high rate of speed and then when a collision occurred, excuse himself because there was another car in front which prevented his seeing the crossing.” And in another case in this court (Schwarzbaum v. Third Avenue R. R. Co., 54 App. Div. 164; second appeal, 60 id. 274), where a pedestrian was run over by an uptown car at a south crossing after having passed behind a south-bound car, it was said: “ There was evidence of negligence. The failure to sound a gong or bell or give some notice of the approach of a car moving even at ordinary speed and near a street crossing was under the circumstances some evidence from which negligence coüld be inferred.”

' Upon the evidence here the jury could infer that the car approached the crossing, where another car going in the opposite direction had stopped to discharge passengers, at a rapid speed and without the gong being .sounded or warning given.

The case of Schwarzbaum v. Third Avenue R. R. Co. (supra) also is authority for holding that where the testimony was that the pedestrian had looked just before stepping upon the track and then, seeing no car, proceeded and was struck by the sudden approach of the car, it could not be said as matter of law that he was guilty of contributory negligence, but that his conduct and all the circumstances of the occurrence were to be passed upon by the jury. Here it was undisputed that the plaintiff followed her friend who preceded her by about six feet and who without hastening her steps crossed in safety. The space between the north-bound car and the west track was slight and plaintiff’s vision in the northerly direction was obscured by the car behind which she passed, and, as she heard no gong sounded or other warning of an approaching car, we cannot say that she was guilty of contributory negligence because she may have erred in thinking she could follow her companion in safety.

Our conclusion, therefore, is that the judgment entered upon the verdict should be affirmed, with costs.

Patterson and Laughlin, JJ., concurred; Van Brunt, P. J., and McLaughlin, J., dissented.

Judgment affirmed, with costs.