Pietras v. International Railway Co. — 208 A.D. 498

Majority

p. 498

Mary Pietras, as Administratrix, etc., of Peter Pietras, Deceased, Respondent, v. International Railway Company, Appellant.

Fourth Department,

March 26, 1924.

Headnote

Street railways — action for death of plaintiff’s intestate struck at street crossing by defendant’s car — judgment in favor of plaintiff affirmed.

In an action to recover damages for the death of plaintiff’s intestate, who was killed when he was struck by one of defendant’s street ears at a street crossing, the verdict of the jury in favor of the plaintiff on the question of negligence and contributory negligence is not against the evidence and the judgment should be affirmed.

Appeal by the defendant, International Railway Company, from a judgment of the Supreme Court in favor QÍ the plaintiff,

p. 499

entered in the office of the clerk of the county of Erie on the 17th day of October, 1923, upon the verdict of a jury for $8,000.

Penney, Killeen & Nye [Olin T. Nye of counsel], for the appellant.

White & Rugg [Ford White of counsel], for the respondent.

As to defendant’s negligence, the jury could properly have found that the car came down the grade and to the place of the accident which was practically a street crossing' at the rate of twenty-five miles an hour; and that the motorman just prior to the collision was talking with the conductor and paying no attention ahead. There was also evidence both positive and negative on plaintiff’s behalf that no gong was sounded. The time was seven-fifteen p. m. on April 25, 1923.

As to contributory negligence the burden was on defendant. Before decedent stepped from the curb, he was headed in the direction from which the car came. It is not shown that he omitted to look. The point of accident was about 21 feet from the curb. It would' have taken him from three and five-tenths to four and two-tenths seconds to walk that distance. At the moment he left the curb, the car would have been from 131 to 147 feet away. The testimony of defendant’s witnesses that the car was one car length away when decedent left the curb can hardly be correct even on the basis of a car speed of nine miles an hour. Wé think the question was for the jury.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed, with costs.