12 Misc. 403 | New York Court of Common Pleas | 1895
The testimony given with regard to the force of the impact between the vehicles justifies the inference that the defendant’s car was proceeding at a high rate of speed immediately prior to the collision. After plaintiff’s servant had looked for approaching danger at the intersection of the streets, he turned his cart into Third avenue, at a walk, and in the same manner proceeded for a distance of 50 feet before turning in upon the track, and had nearly brought the cart completely upon it when collided with by the car. There is fairly room for an assumption, then, that at the time when he looked up and down the track, as asserted, the car was hot sufficiently near to call for notice as an element of danger; and hence his testimony that he did so look, and saw no car, may be credited, taking it in its natural sense. Strictly speaking, it would be well-nigh impossible for one to look up and down the tracks of a street railway, actively operated upon a straight track of the extent of the line of this defendant at the location where the matters in suit occurred, and fail to "see a car at some point; but to await such a situation of extreme safety is not the duty of one attempting to cross a track in a city street. But if the car had actually come from a point where its presence was no source of danger to plaintiff’s cart when his servant looked up and down the track, to a point where it became a destructive agent, during the time in which he proceeded at a walk, while turning the comer and driving 50 feet along Third avenue at the same gait, before turning in upon the track, then Ms failure to look again for danger at the point where
