117 N.Y.S. 703 | N.Y. App. Div. | 1909
Lead Opinion
This action is brought to recover for injuries to the brougham of the plaintiff by reason of a collision between it and a car operated by the defendant. The collision occurred on the 4th day of March, 1908, at the corner of Nassau and Washington streets in the borough of Brooklyn. Washington street runs nearly north and south ; Nassau street intersects it at about a right angle. In the center of Washington street there are two lines of track, the easterly track being used by cars going north toward the bridge entrance, and the westerly track by cars going south toward Fulton street. In addition there is "a third track on the westerly side of the street about two- feet from the curb, which on the day in question was also being used by cars going north toward the bridge. The servant of plaintiff who was driving his carriage was going through Nassau street in an easterly direction and approached the west side of Washington street at a speed of about eight miles an hour. Just before the collision he was driving in about the center of Nassau street. As he reached the corner, without checking the speed at which he had been driving, he started to 'cross the westerly track, lying near to the curbc which would be the first one that he approached. His horses and the front part of the carriage passed over in safety, but the car which was proceeding in a northerly
The defendant introduced no testimony but claimed in the court below and now claims that the plaintiff failed to establish its liability. Defendant’s negligence of which the plaintiff complains is that the car was operated at a high and dangerous rate of speed and that no signal was given of its approach. The allegation of the complaint respecting speed was not sustained. The evidence of plaintiff’s witnesses was to' the effect that the car was proceeding more slowly than the carriage and not to exceed five miles, an hour. There was uncontradicted evidence, however, that no bell was rung nor any signal given of the approach of the car, and there was also evidence received without objection that the motorman did not attempt to stop the car until it was eight or ten feet from the carriage. From this the court below might have found that he did not have his car under proper control, in view of the fact that he was approaching a street crossing. (Harvey v. Nassau Electric R. R. Co., 35 App. Div. 307.) There was sufficient evidence, therefore, in our opinion, to sustain the finding of defendant’s negligence. But to entitle the plaintiff to recover in an action brought for damages for injury to his property it was incumbent upon him to - establish by a fair preponderance of evidence that the driver of the carriage was free from negligence Contributing to the injury. He was plaintiff’s servant, acting within the scope of his employment. The rule that the negligence of the driver of a vehicle which contributed to the injury complained of cannot be imputed to a third person has no application when the relation of master and servant exists between them. (Brickell v. N. Y. C. & H. R. R. R. Co., 120 N. Y. 290; Robinson v. N. Y. C. & H. R. R. R. Co., 66 id. 11.) Upon' this branch of the case plaintiff failed. It was the duty of the driver as he approached this street upon which he knew vehicles and cars were passing up and down, before attempting to cross over, to exercise some care to see whether such vehicles were approaching and avoid collision with them. (Volosko v. Interurban Street R. Co., 190 N. Y. 206.) The testimony of the driver is to the* effect' that he did not slacken the speed of his horses as he approached the corner. He says that he was looking to his left
The judgment appealed from should be reversed and a new trial ordered, costs to abide the event.
Jenks and Rich, JJ., concurred; Gaynob, J., read for affirmance, with whom Woodward, J., concurred.
Dissenting Opinion
(dissenting):
The plaintiff’s testimony is that he was coming into Washington street near the Brooklyn Bridge entrance on the leftliand side as you go to the bridge. The place was congested with cars and wagons, as it always is at that hour. As he came to the first car track he was looking down it, i. e., toward the bridge, to sée if any car was coming up, for cars come up on the righthand side as you come up, and go down on the other. It is said that he did not look up the said up track; but as cars did not run down on that side, but on the other, it could not be ruled as matter' of law that he was
Woodwabd, J., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.