Binns v. Brooklyn Heights Railroad — 89 A.D. 359

Majority

p. 359

Julian Binns, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.

Headnote

Negligence — injury at a street crossing from a rapidly-approaching street car, the view of which was cut off by another car crossing the street—failure of the injured person to look for the approaching car.

In an action brought to recover damages for personal injuries sustained by the plaintiff while crossing Nostrand avenue in the borough of Brooklyn, on the south side of De Kalb avenue, it appeared that the plaintiff crossed from the northeast to the southwest corner of the two avenues for the purpose of taking an east-bound De Kalb avenue car. The car had, however, started easterly across Nostrand avenue and the conductor called to him to “come on ” to the east Nbstrand avenue crossing; as he was crossing Nostrand avenue about abreast of the rear of the De Kalb avenue car, and while on the first, or south-bound track of the Nostrand avenue line which was operated by the defendant, he was struck by one of the cars of that line which shot rapidly over the crossing.

The plaintiff did not testify that he looked for a south-bound car before stepping on the Nostrand avenue track, but he testified that he could not see the Nostrand avenue car until it struck him, because his vision was obstructed by the intervening De Kalb avenue car.

p. 360

Held, that as it appeared that, if the plaintiff had looked in , the direction of the approaching car, he would not have seen it, his failure to do so. did not constitute contributory negligence.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 5th day of May, 1903, upon the decision of the court.

H. F. Ives, for the appellant.

Walter G. Rooney, for the respondent.

The plaintiff was injured on the night of February 26, 1902, while crossing Hostrand avenue in the borough of Brooklyn, on the south side of De Kalb avenue. ' He had just crossed from the northeast to the southwest corner of the two avenues for the purpose of taking a De Kalb avenue car going eastwardly. The car had, however, started eastwardly across Hostrand avenue,, and the conductor called to him to “come on” to the east Hostrand avenue crossing. As- he was crossing Hostrand avenue, about abreast of the rear of the De Kalb avenue :car, and while on the first or southerly-bound track of the Hostrand avenue line, operated by the defendant, a car of that line shot rapidly over the crossing, and, striking the plaintiff, "inflicted personal injuries, for which he has recovered.

. The defendant offered no evidence in defense, but insists on the appeal that the complaint should have been dismissed for the plaintiff’s assumed failure to establish freedom from contributory negligence. It is true that the plaintiff did not testify that he looked for a car from the north before stopping on the Hostrand avenue track, but he distinctly testified that he could not see the car until it struck him, because his vision was obstructed by the intervening De Kalb avenue car. The situation was, therefore, within the line of authorities which absolve the pedestrian from the exercise of a caution which-would necessarily be futile in results, and is distinguishable from the situation presented in the cases cited by the appellant, where a glance would have disclosed the peril. There is no question but that the Hostrand avenue car was run over the crossing in this instance at a very high rate of speed, and without regard to the

p. 361

rule of ■ diligence which requires care to be taken at such a place to-keep the car well under control, and upon which rule travelers are certainly entitled to rely to some extent. In view of all the circumstances, it seems clear that the case was properly disposed of, and the judgment should be affirmed.

Bartlett, Woodward, Jenks and Hooker, JJ., concurred. Judgment of the Municipal Court affirmed, with costs.