Franco v. Brooklyn Heights Railroad — 108 A.D. 14

Majority

p. 14

Maria Franco, by Her Guardian ad Litem, Rocco Franco, Appellant, v. The Brooklyn Heights Railroad Company, Respondent.

Headnote

Negligence—injury to an infant while being carried over street railway tracks from, the sudden acceleration of the speed of a car.

In an action brought to recover damages for personal injuries sustained by the plaintiff, an infant one year of age, evidence was given on behalf of the plaintiff to the effect that on the occasion of the accident the plaintiff’s father, carrying the plaintiff in his arms, attempted to cross the defendant’s street car tracks at'a street intersection; that as he started to cross the street he observed one of the defendant’s electric street cars standing still at the crossing below; that when he reached the first rail of the track the car was thirty-five or forty feet distant from him; that when he was in the center of the track the motorman of the car suddenly increased its speed, so that, as characterized

p. 15

by the plaintiff’s witnesses, it ‘' went like lightning; ” that before the plaintiff’s father had crossed the second rail of the track the car overtook him, throwing him and the plaintiff to the street and injuring the latter.

Held, that the questions of the defendant’s negligence and of the contributory negligence of the plaintiff’s father were questions of fact for the jury, and that it was improper for the court to direct a verdict for the defendant.

Appeal by the plaintiff, Maria Franco, by her guardian ad litem, Rocco Franco, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 27th day of April, 1904, upon the verdict of a jury rendered by direction of the court after a trial at the Kings Cotinty Trial Term, and also from an order entered in said clerk’s office on the 30th day of November, 1904, denying the plaintiff’s motion for a new trial made upon the minutes.

Nelson L. Keach [Achille J. Oishei with him on the brief], for the appellant.

I. R. Oeland [George D. Yeomans with him on the brief], for the respondent.

This is an action for negligence. The plaintiff, at that time an infant one year of age, was being carried by her father across Fifteenth street, in the borough of Brooklyn, on the 21st day of April, 1903, when the father was knocked down by one of the defendant’s electric cars, and both parent and child were injured. At the close of the trial the defendant moved to dismiss the complaint, and the decision of the motion was reserved. The court then submitted the case to the jury, the jury retired and a recess was taken. After recess the jury returned, having failed to agree, whereupon the learned trial judge directed a verdict for the defendant.

We think that the evidence made a case for the-jury, and that it was error to direct a verdict. This is manifest from the statement of the testimony of the plaintiff’s father set out in the brief of counsel for the respondent. That statement is justified by the record, and the material portion thereof is as follows: “ Rocco Franco testified for the plaintiff that he was carrying his child, a baby one year old, on 15th street at its intersection with 3rd avenue

p. 16

on the 21st day of April, 1903; that he came ont of a shoe store and started towards 14th street, and when he came to the curbstone on 15th street he looked to see where the cars were on 15th street. He saw a car that was on 15th street stop at the lower corner coming from Hamilton Ferry. Witness was walking on the upper side of 15th street when the car was stopped at the lower side. That he -went as far as, the first rail and the car was then about thirty-five or forty feet distant from him and he tried to go on the other side,. but the car reached him before he left the second rail because the motorman quickened the velocity of the. car. That when he was ' in the centre of the track he saw the motorman giving more power and the car came rapidly on him. That ■ when the car struck him he was on the last rail of the. track; The car dragged him about fourteen feet. That he had the baby,-the plaintiff,, in his right arm and the child fell with'him.” ' .

There was other testimony in favor of the plaintiff to the effect that just before the father, and child reached the track the motorman put on the power so that the car “ went like lightning.”

The learned trial judge properly instructed the jury, in substance, that they could find for the plaintiff if the accident occurred in the ■ manner testified by the father. We think that this view was correct. It was not contributory negligence, as matter of law, to attempt to pass in front of- a car thirty-five or forty feet distant at the time when the witness reached the first rail, unless the - velocity of the car was such as to indicate to a prudent person that there was danger in doing so. The evidence indicates ' that the car.' was. at a standstill when the plaintiff’s father started to cross the street, ' and that its speed was not increased to a dangeroús rate until just before it reached him. The case is different from Lynch v. Third Avenue R. R. Co. ( 88 App. Div. 604 ), where it did hot appear that the plaintiff exercised any care to see where the. car was after he started to cross the street, but walked heedlessly upon the track. Here the testimony of the father as to the increase in the velocity of ..the car shows that he must have been observing its approach. Nor is Thompson v. Metropolitan Street R. Co. ( 89 App. Div. 10 ) an authority for the disposition which was made of the present ease.

" There the car which struck the plaintiff’s intestate was only eight . or ten feet distant when he stepped upon the .track:

p. 17

We think the plaintiff is plainly' entitled to a reversal of'the judgment.

Present — Bartlett, Woodward, Hooker and Miller, JJ.

Judgment and order reversed and new trial granted, costs to abide the event. .

Cases cited

Lynch v. Third Avenue Railroad 88 App. Div. 604 N.Y. App. Div. 1903-12-11 p. 16
Thompson v. Metropolitan Street Railway Co. 89 App. Div. 10 N.Y. App. Div. 1903-12-11 p. 16