232 A.D. 563 | N.Y. App. Div. | 1931
The record on this appeal contains evidence sufficient to warrant a jury to find these facts: Between ten and eleven o’clock on the night of July 29, 1928, at a point on the south side of Pine avenue in the city of Niagara Falls, a'short distance east of its intersection with Twenty-ninth street, plaintiff’s automobile collided with defendant’s street car. He was driving eastwardly at a speed of fifteen to twenty miles an hour, and observed the street car near an alley about one hundred and forty feet ahead of him, carrying no lighted headlight or other light on the end toward him. Defendant had but one set of tracks on this street, and it used the one track for the passage of its cars in
It cannot be said as matter of law that plaintiff put himself in a place of peril by his own negligence or that defendant was not negligent in view of the absence of a headlight on the street car and the operation of the street car throughout these occurrences.
Whether the street car was so defectively lighted that plaintiff was deceived thereby, and thus led into a place of peril, or whether it was his own failure to use reasonable care that put him there are questions of fact.
The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.
All concur. Present — Sears, P. J., Crouch, Taylor, Edgcomb and Thompson, JJ.
Judgment and order reversed on the law and a new trial granted, with costs to appellant to abide event.