Litzour v. New York City Railway Co. — 116 A.D. 477

Majority

p. 477

William Litzour, Respondent, v. New York City Railway Company, Sued as Interurban Street Railway Company, Appellant.

First Department,

December 28, 1906.

Headnote

Negligence — contributory negligence of teamster in attempting to pass in front of approaching street car —failure to establish negligence of defendant.

A recoveryforaninjury to a teamster resulting from a collision with a street car at intersecting streets must be reversed where, by the plaintiffs own testimony, he saw the car as he approached the cross street about eighty feet away, but continued to drive his heavily loaded wagon slowly forward and again looked just before his horses stepped upon the track when the car was but twenty feet away. ■ Such imprudence constitutes contributory negligence.

Where the evidence shows that the motorman cried out, rang the bell, applied the brakes and reversed the power, the plaintiff has failed to establish the negligence of the defendant.

Appeal by the defendant, the Rew York' City 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 Rew York on the 15th day of February, 1906, upon the verdict of a jury for $250, and also from an order entered in said clerk’s office on the 23d day of February, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Edward D. O'Brien, for the appellant.

Arthur Ofner, for the respondent.

This judgment must he reversed; as the verdict in favor of the plaintiff was not justified by the evidence. It appeared that the plaintiff was driving a wagon or truck on the westerly side of Park avenue, above Fifty-ninth street, in the city of Rew York, and came into collision with a car of the defendant on the northerly' side of its track on Fifty-ninth street at the intersection of Park avenue. He was thrown from his seat and sustained some injuries. He was the only witness called on his own behalf testifying to the occurrence. He swore that the car struck the left-hand rear wheel of his wagon and caused him to fall; that the wagon weighed about

p. 478

3,800 pounds and was-loaded with forty-two half barrels"of beer, weighing . 200 pounds each that when he was approaching Park avenue, going slowly, he looked toward the east and observed the car, which was lighted and not going fast, about eighty feet away; The accident occurred on December 19, "1.908, before dawn. When the plaintiff observed the car he ■ continued' to proceed slowly and he looked. a second time,, just before his horses stepped on the track.; then the' -car was, at the.utmost, twenty feet distant from him. -The motorman was crying out, the gong was being rung and the motorman put on his brake and reversed the power.

It is apparent .from the evidence that the plaintiff did nothing to avoid the accident until his wagon was struck. There is nothing to indicate that the motorman of the car could have done anything-else than what he did to prevent the collision, nor does it appear that he had reason to anticipate that the plaintiff would attempt -to cross in front of the car. The plaintiff made ño effort to stop. According to- his own testimony he was awaye that the, car was coming,'notwithstanding which he drove on slowly in front of it, evidently in the belief that .lie would get over the. track before the car would reach liim. •

Wé are unable to’find in this record sufficient evidence to charge the motorman with negligence; and it is equally clear that the plaintiff’s own imprudence in Continuing to drive slowly on the: track, after he became ’aware that the -car was approaching, 'Constituted negligence on his part.

The judgment and order, appeáíed from should be reversed and a new trial ordered, with costs to appellant to abide the event.

Ingbahah, McLaughlin, Clarke and Houghton, JJ., concurred.

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