Meyer v. Brooklyn Heights Railroad — 9 A.D. 79

Majority

p. 79

Leopold Meyer, Respondent, v . The Brooklyn Heights Railroad Company, Appellant.

Headnote

Contributory negligehce— crossing tracks diagonally in front of an approaching motor car.

In an action brought to recover damages resulting from personal injuries, caused' by the alleged negligence of the defendant, it appeared that the plaintiff was • driving at night along an avenue in Brooklytijiupon which a motor car, brightly lighted, was approaching him ; that he wished to turn off into, another avenue which met but did not cross the one upon which he was driving, and that

p. 80

when the ckr was distant from him about 150 feet, he proceeded to cross the tracks in question diagonally, walking his horse. He gave no sign to the motorman indicating his intention to cross the tracks, and' after having proceeded hi.a diagonal' direction a “distance of two houses” he was struck by the motor car and was injured.

Held, that.he Was guilty of contributory negligence; .

That the motorman was. not bound to anticipate that the plaintiff would drive diagonally on the track towards "the "approaching car, at a dangerously short' distance from it, without giving any notice of his intention so to do.

• . .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 -13th. day of-..March,. 1896, upon the verdict of a jury rendered after - a trial at a Trial- Term of the; Supreme Court held," In and for the ¡county of Kings, and also from an order entered in said clerk’s- office .'on .the lgtli day of March, 1896, denying the defendant’s motion- for a new trial made upon the minutes.- ■ . -

This action was brought.to recover- the damages resulting' from, personal .injuries caused by the alleged negligence of the defendant. •

William - W. Goodrich, for the appellant.

■ James IJ. Bell, for-the respondent."

The jilaintiff in this action did not sustain the burden.which the. law placed upon him of proving his own freedom from contributory negligence. ;

The accident which -gavel rise to the suit occurred-, on Kulton avenue near Throop avenue in the city of Brooklyn, on. the 29th day of September, 1894,. at about nine o’clock in the evening. The plaintiff had'been driving in a buggy along the south, side of Fulton avenue in an 'easterly .direction. ; When he reached a point about' seventy-five or eighty feet ¡from.. Throop avenue, lie turned his horse to.-the. left. So-..as t.o-. cross the- tracks of - the defendant’s., railroad diagonally and get into that street which runs out of Fulton avenue, on the ..north) -but...does not.-cross it. ..His horse was, walking. Alike- same 'tibie a car of the defendant’s was coming down Fulton avenue" cn' 'the north "track,, having- réached a point- abónt-seventyfive feet thb other side bf’Thfbhp'avenue. '"The plaintiff' himself

p. 81

did not testify definitely as to these distances, but the figures were given by the principal other eye' witness of the accident. They show that, when the plaintiff started his horse at this slow rate in a diagonal direction across the track upon which was the approaching car, his buggy and the car must have been about 150 feet apart. The car was brightly illuminated by a headlight in front and electric lights within, and was in plain view of the plaintiff, who saw it distinctly, there being no other vehicles on the block. He testified that he thought he had lots of time to cross. In fact, however, the car collided with his buggy when he had gone only “ the-distance of two houses in this diagonal direction.”

We think these circumstances point clearly to his own imprudence as one of the causes contributing to the collision. He does not appear to have given any sign to the motorman on the defendant’s car to indicate that he meant to turn into Throop avenue, and that intention could hardly have been made manifest in the short time during which he pursued his diagonal course before the accident occurred.' To start in such a direction, with his horse at a walk, and the approaching car only 150 feet distant, was to invite disaster, unless he took some efficient means to let the motorman know where he proposed to go. The case is not like that of vehicle driven along a cross street at right angles over a railroad track in the intersecting street. There the passage of trucks, wagons and carriages of various kinds is to be expected, and persons operating the railroad cars must be watchful to avoid them. But Throop avenue does not cross Fulton avenue, and the defendant’s motorman was not bound to anticipate that the driver of a buggy, in order to get into that street, would drive diagonally onto the track toward his approaching car, at a dangerously short distance from it and without any notice. The plaintiff’s act may be compared to that of a mariner whose vessel is run down because he has not given himself room enough when he undertakes to sail across the bows of another craft. Such experiments are perilous and apt to result in misfortune.

The judgment and order appealed from must be reversed and a new trial granted, with costs to abide the event.

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event.