85 N.Y.S. 181 | N.Y. App. Div. | 1903
The plaintiff, as the administratrix óf Yirgil D. Thompson, deceased, brought this action to recover the damages alleged to have been sustained by his widow and next of kin on account of his death, upon the ground that • the same was caused solely by the negligence of the defendant. She had a verdict, and from the judgment entered thereon and from an order denying a motion for a new trial defendant has appealed.
At the trial it appeared,, and the facts were uncontradicted, that the intestate about four o’clock in the afternoon on the 11th day of July, 1901, attempted to cross diagonally from the southwest to the easterly side of Broadway at its intersection with Eighth street, and
The plaintiff, of course, was not entitled to recover unless she ' produced' evidence sufficient to sustain a finding of the. jury that the injuries to her intestate were due to the negligence of the defendant and that his negligence did not contribute thereto. This she failed to do. (Lynch v. Third Ave. R. R. Co., 88 App. Div. 604; Little v. Third Ave. R. R. Co., 83 id. 330; Jackson v. Union Ry. Co. 77 id. 161; Johnson v. Third Ave. R. R. Co., 69 id. 247.)
Whether or not a signal of the approach of the car was given is of no importance because the evidence is conclusive upon the point that the intestate saw the car. He “ looked at the car ” and must have known that it was approaching, because it was then only eight
We have examined the other questions raised, but do not deem them of sufficient importance to be here considered.
It follows that the judgment and order appealed from must be reversed and a new trial ordered, with costs to appellant to abide the event.
Van Brunt, P. J., Ingraham and Hatch, JJ., concurred; O’Brien, J., dissented.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.