116 N.Y.S. 249 | N.Y. App. Div. | 1909
Lead Opinion
The action is to recover damages for the negligent killing of plaintiff’s intestate while she was attempting to cross one of defendant’s tracks. The defendant is a Hew Jersey corporation, operates a ferry across the Hudson fiver from Hew York city to Fort Lee, and a double-track street railway running from that place to various, points in Horthern Hew Jersey.
In the evening of October 19, 1906, the deceased, in company with her husband and another man, were intending to board a north-bound car on Broad avenue, in whát is known as Palisades park. As they came to the far side of the avenue a car was observed going in the desired direction, and the husband and friend went ahead of the deceased to detain the car for her. Whether from unwillingness to delay or lack of understanding on the part of the conductor, he refused to hold the car and started it with the two men aboard. From the testimony on the part of plaintiff it is apparent that the deceased proceeded diagonally northward in the vicinity of the south-bound track in the hope of overtaking the car which her husband had boarded. A south-bound car coming at a rapid rate struck and killed her just as she was stepping over the outer rail of the south-bound track. It is also clear from the plaintiff’s own proof that the point of the accident was about seventy-
If it be conceded that the defendant was negligent in the speed at which the south-bound car was run, and that the motorman was careless in observing the movements of the decedent, still we are of the opinion that the judgment cannot stand because of the clear contributory negligence on the part of the deceased. She was walking toward the coining brilliantly lighted car. Her husband testifies that he heard a whistle, but whether the whistle sounded or not she was bound to look and to observe that a car was approaching upon the track which she was about to cross. The presumption is that she did look for it was something she could not help but see. Plaintiff’s counsel urges that the light was so bright that it blinded her, and that it was impossible, because of its brightness, for her to estimate its distance from her. These suggestions present no excuse. Had she only been injured and not killed, and had she testified that she looked, as the law compelled her to do, and did not see the light and the car, her testimony would have been deemed incredible as matter of law, and she must necessarily have been held guilty of contributory negligence in failing to exercise ordinary caution. (Dolfini v. Erie Railroad Co., 178 N. Y. 1.)
The plaintiff, a resident of the State of New York, was appointed administrator of the deceased on the ground that she, although a resident of the State of New Jersey, left property within the county' of New York consisting of a deposit in a savings bank to the credit of herself and her husband, “ or either.” On her death the husband drew out about one-half the amount, and on the trial testified that the other half belonged to his deceased wife. We are not prepared to say upon his testimony and the form of the deposit that none of the moneys belonged to the deceased, and that, therefore, the Surrogate’s Court had no jurisdiction to appoint the plaintiff administrator of her estate.
In any event the verdict was against the weight of evidence as to lack of contributing negligence on the part of the deceased, and the judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.
Patterson, P. J., concurred.
Concurrence Opinion
I concur with Mr. Justice Houghton in the view that the deceased was guilty of contributory negligence, but I think this is a case in which the court should decline to take jurisdiction of the cause of action sued on for the reason stated in Ferguson v. Neilson (11 N. Y. Supp. 524), Wertheim v. Clergue (53 App-. Div. 124) and Collard v. Beach (81 id. 582). In each of these cases the court had jurisdiction of the cause of action and of the parties but declined to exercise it on the ground that the action was to recover for a tort committed in a foreign State where both parties to the action were residents of that State. In this case the defendant was a foreign corporation having no business in this State and over which the courts of this State have no jurisdiction. The deceased was a resident of that State and her husband and next of kin, for whose benefit the action was brought, are also residents of that State. The plaintiff, who is a resident of this State, has obtained letters of administration upon the ground that the deceased had property in this State, a proposition which is doubtful bnt which I assume we cannot consider on this appeal. In this State, by sections 1902 and 1903 of the Code of Civil Procedure, an executor or administrator may maintain an action to recover damages for a wrongful act by which the decedent’s death was caused against a natural person who or a corporation which would have been liable to an action in favor of the decedent by reason thereof if death had not ensued,
The New Jersey statute
I am, therefore, in favor of reversing this judgment upon the ground that if the courts of this State have jurisdiction because of the residence of the plaintiff, the administrator of the decedent, they will refuse to exercise that jurisdiction and the judgment should, therefore, be reversed and the complaint dismissed.
Clarke and Scott, JJ., concurred.
Judgment reversed and complaint dismissed, with costs. Settle order on notice.
See Gen. Stat. of N. J. 1188, §§ 10-12, as amd. by Laws of it. J. of 1897, chap. 58. Since amd. by Laws of N.’ J. of 1907, chap'. 149, and Laws of N. J. of 1908, chap. 322.— [Reí».