Greene v. Metropolitan Street Railway Co. — 100 A.D. 303

Majority

p. 303

Patrick Greene, Respondent, v. Metropolitan Street Railway Company, Appellant.

Headnote

Negligence — leaving the sidewalk, when in sight of a ra/pidly approaching car, and without looking again walking in front of the car, constitutes contributory

In an action brought to recover damages for personal injuries it appeared that the plaintiff, on coming to the corner of a street upon which the defendant operated a street railway, at about nine o’clock in the evening, looked and saw a south-boimd car about three-quarters of a block away approaching rapidly; that he then started across the street and did not look again until he was in the center of the south-bound track, when the car was too close to enable him to avoid- being struck by it.

Held, that, aside from the question of the defendant’s negligence, the evidence was not sufficient to sustain a finding that the plaintiff was free from contributory negligence;

That it was entirely clear that the accident was caused by the act of the plaintiff in stepping in front of the car when it was so close to him that no act of the motorman could have prevented the accident.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme, Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of February, 1904, upon the verdict of a jury for $200, and also from an order entered in said clerk’s office on the 29th day of January, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Bayard H. Ames, for the appellant.

George H. Culver, for the respondent.

The plaintiff with two friends, on the evening of the 28th of October, 1900, at about nine o’clock, walked down the east side of Third avenue to the corner of Fifty-third street; looked up and down the avenue and saw a south-bound car coming about three-quarters of a block away. They then started from the sidewalk to cross the avenue, walked straight across without again looking until they were upon the south-bound track, upon which they had seen the car approaching. The plaintiff testified that when he was in the

p. 304

center of the south-hound track he looked up and the car was right upon him; that the car appeared to be coming'' very fast, faster than the usual speed, and when asked particularly in reference to the speed of the car he replied, “ Well, I couldn’t say, but it was coming fast; ” that when he looked up the car was then five or ten feet away; that he made an attempt to get out of the way but was ' struck. His two companions were examined as witnesses. They seem to have seen the car at about the same time; one jumped across the track and escaped. The other, being behind the plaintiff, stopped before going upon the track. One of the plaintiff’s companions testified that when he first saw the car. as he was stepping off the sidewalk it was running at a furious rate of speed, the second time he saw it it was going about the' samé. ' The plaintiff’s other companion testified that when he first saw the car it was running fast and he. then started to cross the track, and the next thing he saw the car was within ten feet of him ; that he got across the. track; that when he saw the car the second time he was on the west side of the west side track and was ready to step on the west side of. the rails of the west side track;

There was no evidence to justify a finding that the defendant was negligent or that the plaintiff Was free from negligence.. The plaintiff and his companions walked in.front of an approaching car which was coming, at a rapid, rate of speed. There was nothing to indicate to the motorman that they intended to cross in front of the car; nothing to require the motorman to stop the car to let them cross. But whatever may be said of the negligence of the defendant, it is entirely clear that the accident was caused by the negligent act of the plaintiff in stepping in front of this rapidly approaching, car when it was at such a distance from him that no act of the motorman could have prevented the accident, While I do not think that' as a matter of law it is contributory negligence-for a person to attempt to cross the track of a street railroad because a car is in sight, it is certainly reckless conduct to step in front of a rapidly approaching car when the car is only ten feet away. I think it immaterial whether-or not the plaintiff looked after leaving the sidewalk. If he looked he must have seen that an attempt to cross. in -front of. the car would necessarily;result in a collision. If he saw a-rapidly approaching-car when he stepped off the-sidewalk and he

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walked on without looking, and because of his failure to look he placed himself in a position of danger, he was guilty of negligence which precludes a recovery.

I think, therefore, that the judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.