Robinson v. Union Railway Co.

106 N.Y.S. 203 | N.Y. App. Div. | 1907

Gaynor, J.:

The best phase of the testimony of the plaintiff and. liis witnesses is that he was walking across 3rd avenue in Bronx borough ■ near 180th street in the' middle of- the. Block after lark; that as he was about to step ón the uptown .track (the first-he -reached)"he looked south and saw a car approaching at á medium rate of speed 60, 75, or 80 feet away; that as he got to the middle of this track he looked again and the car was so close that he jumped back hut was -hit before he could -get off the track -and lost a' leg. There was no other vehicle in the vicinity, and nothing to prevent the plaintiff from seeing the-car all the time. Having seen the car that distance away as he was stepping on the track, it was impossible for him to be struck by the car by the time he got to the •middle of the track unless he negligently, remained in the way.•One witness says the head light went out as the car was going the said distance and then lighted up again ; but if this he believed it makes no difference for the plaintiff says he saw the car.

The judgment should be affirmed.

Present — Hirschberg, P. J., Woodward, Gaynor and Miller, JJ.

Judgment unanimously affirmed on reargument, with costs.-