43 N.Y.S. 856 | N.Y. App. Div. | 1897
This action is brought to recover damages alleged to have been sustained by the plaintiff through the negligence of the defendant, in having driven over him while he was at work in sweeping the north
The questions arising upon this state of facts are as to whether there was any proof of the defendant’s, negligence and whether the plaintiff showed himself free from contributory negligence — or, rather, whether there Avas evidence upon these subjects to go to the j“7-
Undoubtedly those persons who are engaged upon the streets in the public service cannot exercise the same diligence in getting out of the way of- passing vehicles. as those persons can Avho are simply -crossing the streets and avenues; and it cannot, be expected that they should, because if their time were taken' up. by looking out for
It is claimed upon the part of the defendant that the plaintiff was guilty of negligence in facing south when he knew that' his back would be to all the vehicles which came in that direction. This, we think, however, was a question for the jury as to whether the plaintiff exercised that degree of care under the circumstances which an ordinarily prudent man would exercise, and that it was not a matter of law upon the facts of this case, but one which the jury were called upon to determine. If it were necessary in the prosecution of his business that he should be in that position, of course no negligence could be imputed to him. If by reasonable care he could have put himself in a position where he could protect himself from dangers, of this description, then he was bound to use this care, having a. view to the work which he was engaged in prosecuting. We think,, therefore, that this question was one which the jury were called upon to consider, and which they had a right to determine.
The next question is as to the negligence of the defendant. It. seems to us that that question is involved in the determination of the correctness of the. story of the defendant as' to how the accident happened. Persons driving along the streets are bound to use their-eyes for the purpose of seeing those who may be rightfully in the streets, whether as pedestrians, persons working in the streets or persons in vehicles. The plaintiff was rightfully in the street, his public work compelled him to be there, and' it was the duty of the defendant to use reasonable diligence in seeing and avoiding him. This he claims to have done. He says, as already stated, that he saw the plaintiff just as he was passing him; that the plaintiff stepped back to avoid another team and went directly in front of the defendant’s wagon, and that it was impossible for the defendant to stop before the plaintiff was knocked down and run over. In this evidence the defendant was supported by the lady who was riding with him; and, if this were the case, there Was, of course, no ground upon which the defendant could be held guilty of negligence. The plaintiff, upon the other hand, states that he did not step back. The other witnesses who were examined upon the trial do not seem to
It was claimed that the interest whitih the defendant manifested in the injuries of the plaintiff was an admission of negligence upon his part. YVe cannot find anything in the record which would ■ justify any sutih inference. Upon the contrary, all that the defendant did after the happening of the accident was that which any' kind-hearted man would have done to one who had been injured by him without, fault upon his part.
Upon the whole case we think that the questions of the negligence of the defendant and the contributory negligence of the plaintiff should have been submitted to the jury, and that the court , could not determine those issues for itself.
The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Barrett, Rumsey, Williams ánd Patterson, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event. '