McDonald v. Brooklyn Heights Railroad — 51 A.D. 186

Majority

p. 186

Grace McDonald, an Infant, by Michael McDonald, her Guardian ad Litem, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.

Headnote

Negligence — evidence, as to the distance within which a car could be stopped if trawling within the prescribed speed, is competent to show the rate at which it was running.

In an action brought to recover damages for personal injuries, sustained by the plaintiff in consequence of being run over by a street car at a point where the city ordinances prescribed that the speed should not exceed eight miles an hour, evidence that a car, traveling at the rate of eight miles an hour, having its brake and appliances in order, could be stopped within twelve feet, is competent to show that the car in question was traveling at a greater speed than eight miles an hour, when considered in connection with evidence that the motorman applied the reverse power when forty feet from the plaintiff but was unable to stop the car until it had run over her and gone more than forty feet further.

p. 187

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of November, 1899, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 29th day of November, 1899, denying the defendant’s motion for a new trial made upon the minutes.

John L. Wells, for the appellant.

Thomas E. Pearsall, for the respondent.

The action is to recover damages for injuries to the plaintiff, a child seven years of age, who was crossing Fifth avenue, between Second and First streets, in the borough of Brooklyn, when she was run over by one of the defendant’s cars and so injured that it became necessary to amputate both her legs.

The contention of the defendant is that the accident was caused by the plaintiff’s own negligence and not by the negligence of the defendant. A careful reading of the record shows a clear conflict of evidence on both questions.

There was evidence on the part of the plaintiff tending to show that the car crossed Second street, going toward First street, at a high rate of speed, above the rate of eight miles an hour, prescribed by the city ordinances, and without slowing or stopping, and ran over the child about fifty feet beyond Second street; that the plaintiff was walking across the street diagonally and heading toward First street, the direction in which the car was going; that she had almost crossed the track, when the motorman of the car saw her and shouted to her; that she became alarmed and confused in the presence of danger and, instead of continuing to go across the track, turned, and that before she could clear the track she was struck by the car and run over.

On the part of the defendant there was evidence tending to show that the car stopped or slowed down, at the. downtown crossing of Second street, to take on a prospective passenger who, however, did not take the car on account of its not being bound to her destination ; that the ear started ahead slowly ; that when about fifty feet

p. 188

from the crossing, the child, who was playing tag with companions, ran entirely across the track and then turned hack, when the motorman, seeing her, shouted to her and reversed his lever, and that it was impossible to stop the car in time to prevent the accident.

Upon these theories there was much conflicting testimony. Upon that produced by either party the jury would have been justified in finding a verdict, and consequently the court could not do otherwise than submit the issue to the juiy. In a charge to which no exception was taken, the question was fairly submitted and the verdict will not be disturbed.

The defendant’s only exception as to an admission' of testimony is that it was error for the court to admit evidence as - to the distance in which a car with its brake and appliances in order, going eight miles an hour, as required by the ordinance, could be stopped. The answer was twelve feet. There had been evidence that the car was going at a much greater' speed, and this was material to corroborate the evidence of high speed, as witnesses had testified that the motorman shouted to the child when the car was more than forty • feet distant, and at once applied the reverse power, and did not stop the car until it had run over the child and gone more than forty feet farther. We are of opinion that the admission of the fevidence was not error.

The judgment should be affirmed.

Judgment and order unanimously affirmed, with costs.