Mathers v. Interurban Street Railway Co. — 112 A.D. 397

Majority

p. 397

Joseph W. Mathers, Appellant, v. Interurban Street Railway Company, Respondent.

Second Department,

April 20, 1906.

Headnote

Negligence—pedestrian injured by street car—failure to look after leaving curb — when nonsuit improper.

When the plaintiff, after walking behind a passing car at a cross street was struck by a car moving in the opposite direction on a parallel track, and there is evidenpe which justifies a finding that as he left the.curb plaintiff looked in both directions and that the car which struck him was then a block away, it is error to grant a nonsuit on the ground that plaintiff failed to look again in that direction. Whether or not plaintiff was negligent in failing to look again was a question for the jury.

Appeal by the plaintiff, Joseph W. Mathers, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 2d day of August, 1905, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Westchester Trial Term.

Thomas J. O'Neill [Frank M. Hardenbrook with him on the brief], for the appellant.

Anthony J. Ernest [Bayard H. Ames and Henry A. Robinson with him on the brief], for the respondent.

The jury could have found from the evidence that the plaintiff was crossing Third avenue, Manhattan, at the lower crossing of Thirtieth street from east to. west at an ordinary walk; that as he left the curb he looked up and down Third-avenue, and saw'a car up near Thirty-first street coming down and • another down at Twenty-ninth street coming up (i. e., on the east track) ; that another car going uptown was at the time-passing the crossing he was on; that no other cars were between Twenty-ninth and Thirty-first streets; that h.e walked across in the rear of. the said uptown car that was passing at the time, and as he came out from behind it was hit by the downtown car. ’ '

The plaintiff was nonsuited for not looking uptown again before going on the downtown track. This was error. When he looked ' on leaving the curb the downtown car -was that far away that it was atdeast a. question of fact whether it was contributory negligence not to look again.' I do- not see it would be of any use to. cite decisions.

The judgment is reversed.

Hirschberg, P, J., Hooker, Rich and Miller, JJ., concurred.

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