Wall v. Merkert — 166 A.D. 608

Majority

p. 608

Minna V. D. Wall, as Administratrix, etc., of William V. D. Wall, Deceased, Respondent, v. Emily Merkert, Appellant.

First Department,

March 19, 1915.

Headnote

Motor vehicles — negligence — death of pedestrian struck by automobile while crossing street at intersection — contributory negligence — verdict against weight of evidence.

In an action to recover for the death of plaintiff’s intestate, claimed to have been caused by the negligence of defendant’s chauffeur, it appeared that the deceased, a man fifty-nine years of age, started to cross the street at a point of intersection with another street, and after reaching a space between two surface railway tracks, upon hearing the horn from defendant’s automobile, which was then between twenty and forty feet from him, threw up his hands, took one or two steps back in front of the automobile and was instantly hit. He had looked in the direction in which the automobile was coming just before he started, and looked again in that direction while stepping back. The automobile was running at a speed of between eleven and twelve miles an hour, with lamps lighted, and there were no vehicles obstructing the street.

Held, that a verdict that the decedent was free from contributory negligence, and that the accident was caused solely by the negligence of the defendant’s chauffeur, was against the weight of the evidence. LAUGHUif and Hotchkiss, JJ., dissented.

Appeal "by the defendant, Emily Merkert, 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 15th day of June, 1914, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 23d day of June, 1914, denying defendant’s motion for a new trial made upon the minutes.

E. Clyde Sherwood of counsel [Robert B. Cumming with him on the brief], Amos H. Stephens, attorney, for the appellant.

Joseph F. Murray of counsel [Victor Deutsch, attorney], for the respondent.

The plaintiff’s evidence tended to show that her intestate, a roan fifty-nine years of age, between eight and nine o’clock

p. 609

on the evening of January 18, 1913, was walking west on the south side of Eighty-third street towards First avenue. There are two surface railway tracks running along the center of First avenue. When he came to the avenue he started to cross, either on the south crosswalk to the southwest corner or in a diagonal direction to the northwest comer of Eighty-third street. When he had passed over both rails of the northbound track and had reached the space between the northbound and south-bound tracks, the chauffeur of defendant’s automobile, which was proceeding up First avenue on the north-bound track, sounded his horn. The decedent threw up his hands, took one or two steps back towards the east and upon the north-bound track in front of the automobile, and was instantly hit by the left front edge thereof, thrown down and killed. He was hit while in the act of stepping back upon the north-bound track. He had looked in the direction in which the automobile was coming just before he started for the east, and looked again in that direction while stepping hack. The automobile was running north on First avenue, on the north-bound track, with lamps lighted, at a speed of between eleven and twelve miles an hour. The chauffeur sounded his horn at Eighty-second street, in the middle of the block between Eighty-second and Eighty-third streets, and for the third time near the south crosswalk of Eighty-third street, at a distance variously estimated by witnesses for the plaintiff to he twenty, thirty, or forty feet from the decedent. There were no vehicles obstructing the avenue at this time.

Accepting the plaintiff’s version of the accident, as did the jury by its verdict, the judgment cannot be sustained. The decedent had reached a place of safety and suddenly stepped backward in the path of the automobile. The ground upon which the recovery is sought to he sustained is that the decedent was placed in a position of danger by the negligent blowing of the automobile horn. In the charge the learned court said to the jury: “It is claimed by the plaintiff that this man had safely crossed the north-hound track, when, excited or disturbed or frightened by the sound of this Klaxon horn, instead of stepping forward he stepped hack onto a point

p. 610

between the rails of the north-bound surface railroad track; that then, in stepping forward again, in order to go west, he was struck by what would be the north east part of that car; ” and again he said: “Was this man, having gotten in a.position of safety, frightened by the automobile horn so that he stepped back one step, and then in stepping forward, before he could get out of the way was run down by the negligence of the employee of the defendant?” And at the close of the charge a juror asked: “Is there any law in the case where a horn is blown and a person gets excited and steps back ■— is there any law on that subject?” The court: “I will charge you in this way: That man had a right to be upon that street for the purpose of crossing; if he stepped back, as a consequence of some reckless act upon the part of some other person, and if as a consequence of that he was injured, then the defendant would be responsible for the injury sustained, for the death in this case.”

The learned counsel for the respondent in his brief states: “We have been unable to find any cases in this State holding that the blowing of a horn under such circumstances is a negligent act.” It is provided in chapter 314 of the Laws of 1910, entitled “An Act to amend the Highway Law,^[1] by repealing article eleven thereof and inserting a new article eleven, in relation to motor vehicles,” in subdivision 1 of section 286 of such Highway Law, that every motor vehicle shall be provided with “ a suitable and adequate bell, horn or other device for signaling,” and subdivision 2 provides: “* * * Upon approaching a pedestrian who is upon the traveled part of any highway and not upon a sidewalk, and upon approaching an intersecting highway or a curve or a comer in a highway where the operator’s view is obstructed, every person operating a motor vehicle shall slow down and give a timely signal with his bell, horn or other device for signaling.”

It has been held in innumerable cases that a failure to observe an ordinance or a statute is evidence of negligence. This is the first case that has been brought to our attention where obedience to an ordinance or statute is made the ground of a recovery for negligence.

* Consol. Laws, chap. 25; Laws of 1909, chap. 30.—[Rep. .

p. 611

I think the verdict that the plaintiff’s decedent was free from, contributory negligence and that the accident was caused solely by the negligence of the defendant’s servant is flatly against the evidence. The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Scott and Dowling, JJ., concurred; Laughlin and Hotoh- . kiss, JJ., dissented.

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