Robkin v. Joline

114 N.Y.S. 98 | N.Y. App. Term. | 1909

BISCHOFF, J.

From the evidence given upon the subject of the relative position of the car and of the plaintiffs, the jury could properly find that when these pedestrians left the curb, with the apparent intention of crossing the track, the car was at a sufficient distance to have justified their attempt, in reliance upon the observance of ordinary care by the person charged with its control. Acceptable evidence supported the finding that the motorman had ample opportunity to observe the approach of these plaintiffs and to expect their presence upon the track, and they cannot be charged with contributory negligence as a matter of law because their attempt to cross the track involved some possible 'lessening of the car’s rate of travel, after the intent to cross was signified by their actions, to a person, using reasonable care in the situation of the motorman.

It would have been error for the trial court to dismiss the complaint under these circumstances, had there been no proof that the plaintiffs looked at the approaching car after leaving the curb; and the refusal to charge that such an omission, if found, would require a verdict for the defendant, was clearly proper. There was evidence that the plaintiffs looked for danger, and noted the position of the car before they left the curb, and again as they came to the track; and the question whether they were reasonably prudent was one for the jury to determine upon the facts.

Judgment affirmed, with costs. All concur.