Zucker v. Whitridge

Third avenue in the city of New York, running nearly north and south, crosses Eighteenth street almost at right angles. The defendant has two railroad tracks laid on the surface of the avenue at the point where it crosses the street, the easterly track being used for cars going north and the westerly for those gomg south. On the 18th of December, 1908, at about half past eight in the evening, the plaintiff's intestate while walking easterly on the northerly crosswalk of Eighteenth street, as he was about to step over the westerly rail of the north-hound track, was struck by a northbound trolley car and fatally injured. In this action, brought by his administratrix under the statute, tho

There is an elevated railroad structure over the avenue at the point in question with the usual stations, platforms and stairways, and when the accident happened a train was passing overhead. A south-bound car had just crossed Eighteenth street, which is a little more than thirty feet wide between curbs, and it was some distance south of the street when the decedent was struck. The night was dark and misty, but there was an electric light on the northeast and another on the southwest-corner and a gas light on the northwest corner. Twelve iron columns each sixteen inches square supporting the elevated structure stood as follows: Three in the westerly sidewalk of the avenue, one on either side of Eighteenth street, four feet and three inches west of the west curb of the avenue and the third on the west curb of the avenue, the first and second being a little more than thirty feet apart and the second and third between fifty and sixty feet; three a few feet west of the south-bound track and three more a few feet east of the north-bound track and about the same distance apart north and south as the three first above described; three more in the easterly sidewalk situated about the same as the three in the westerly sidewalk. There were also the four stairways and the poles supporting the three lights.

The decedent was in the prime of life and .in the possession of his faculties. As he walked easterly on the north crosswalk of Eighteenth street the crossing was directly before him, but his view toward the south was somewhat obscured at some points by the stairways, columns, etc., until he reached the westerly curb bf the

The trial court and a majority of the Appellate Division, apparently with some hesitation, announced as their opinion that the jury could have found from the evidence that if the decedent had looked he could not have seen the approaching car in time to save himself. I see no evidence in the record to justify this conclusion. While the view of the decedent was somewhat obstructed at first, for over four feet before he attempted to cross the first track, and for over fourteen feet before he attempted to cross the second track, his view both to the north and south was wholly without obstruction of any kind. If he looked at first, and found his view was not clear, he was bound to keep on looking, and not try to cross the tracks until he could see his way was free from danger. The trial court charged that: “If the jury find that a south-bound car temporarily interfered with Zuelzer’s view of the north-bound track, that fact made it incumbent upon him to be vigilant and to look again -after the car had ceased to interfere with his view.” He did not look, or try to look at any time or place, so far as appears. He passed over the space where the view was clear apparently so absorbed in thought that he looked in no direction except straight ahead. No witness saw him look, or try to look, or turn his head, or make any movement as if he was looking, until, as one witness stated,

The trial court also charged that the decedent “did not have the right to rely on the motorman’s stopping on the south crosswalk.” Moreover, if the decedent saw the car when it was at the south crosswalk, or near it, the theory upon which the case was submitted to the jury utterly failed and he was conclusively shown to be guilty of affirmative negligence.

The burden of furnishing some evidence tending to show that the decedent used some care rested upon the plaintiff,- but she did not meet it. Although two witnesses had him under observation all the time and two more the most of the time while he was traveling the last thirty feet toward a place of known danger, not one saw him look in any direction except straight ahead. During the last fourteen feet he crossed the westerly tracks and was about to cross the easterly, yet it did not appear, either from direct evidence or from circumstances, that he looked either to the right or the left as he walked this distance, and it conclusively appears that if he had looked he could have seen the approaching car, for it was no longer obstructed either by columns or the south-bound car. If there had been no eye-witness of the accident less evidence of care would have been required from necessity, but in such a case the jury could not find that care was exercised without some evidence, even if weak, to act upon. Here there was none. The surrounding circumstances did not show that the accident might have happened without negligence. While not obliged to look in any particular direction at any particular point, it was the duty of the decedent to look in both directions before he tried to cross the tracks, for he was familiar with the situation and knew the danger. The night was misty and dark, but the locality was well lighted; the north-bound car was fully lighted and all

A majority of the judges are of the opinion that the decedent, upon the most favorable view of the evidence that can be taken in the interest of the plaintiff, was guilty of contributory negligence as matter of law. As we said in a late case: “ He knew that he was in a place of danger and it was his duty to exercise some care for his own safety, yet he took no care whatever. * * * Every person is bound to use reasonable care to- avoid known dangers and if he fails in this duty to himself, the loss ensuing does not fall on another whose negligence helped, to bring about the result, for the law does not apportion negligence nor assign to each party responsibility for his own contribution. The one guilty of contributory negligence must bear the loss alone.” (Volosko v. Interurban St. Ry. Co., 190 N. Y. 206 , 209.)

One other question requires attention on account of its importance and novelty. A witness who had known the decedent for eight years, and during that period had walked with him through the streets of the city of New York and had crossed railroad tracks with him, was asked by the plaintiff: “State what you observed as to his manner of crossing railroad tracks while in your company.” Objection was made to the question as incompetent and immaterial, but it was overruled and anexcep

The learned justices of the Appellate Division divided in" judgment on this question by the same vote of three to two as upon the other, but one of the majority in casting the decisive vote said: “As to the evidence that the deceased customarily exercised care in crossing railroad tracks, I much doubt its admissibility, but, even assuming that it was incompetent, I am not persuaded that it tended in any appreciable degree to induce the verdict. At most it only tended to lend a tone of probability to the direct evidence that on the occasion of the accident Zucker apparently observed ordinary care in crossing the street.”

The converse of the proposition involved was held by this court in Eppendorf v. Brooklyn City & Newtown R. R. Co. ( 69 N. Y. 195 ). In that case one of the issues was whether the plaintiff was negligent in trying to board a slowly moving street car after it had nearly stopped in response to his signal. The court said, all the judges concurring except one who was absent: “ The offer of defendant’s counsel to show that plaintiff was in the habit of jumping on defendant’s cars when in motion was properly excluded. It is impossible to perceive what bearing the evidence offered could have. * * * It was not offered to show that the plaintiff was generally careless or reckless, and if it had been, it would have been incompetent. The simple fact that he was in the habit of jumping upon, the moving cars could have no bearing in this case. The sole question to be determined here, so far as relates to plaintiff’s alleged contributory negligence,

In an earlier case it had been held, one judge dissenting, that evidence of the intoxication of the flagman on previous occasions was immaterial, because “his neglect on a former occasion, or his former intemperate habits, would not be sufficient to create negligence, or be any evidence of it, when this accident happened. The evidence objected to tended, like.the suggestion that the railroad'company did not own the highway, to create a prejudice in the mind of the jury, and invite punitive damages, not directly arising from the occurrence.” (Warner v. N. Y. C. R. R. Co., 44 N. Y. 465 , 472.)

To the same effect is Cleghorn v. N. Y. C. & H. R. R. R. Co. ( 56 N. Y. 44 , 46), where Chief Judge Church said: “Previous intoxication would not tend to establish an omission to give the signal on the occasion of the accident.” (See, also, Gorman v. N. Y., Chicago & St. L. R. R. Co., 194 N. Y. 488 , 493.)

In Wooster v. Broadway & Seventh Avenue R. R. Co. ( 72 Hun, 197 ) one of the issues was whether the driver of a coupé was negligent, and evidence given in behalf of the plaintiff tending to show that he was generally careful was held incompetent. Judge Follett, after citing authorities, said: “It has been many times held that it is not competent for a plaintiff to give evidence that the person by whom the alleged negligent act was committed had previously committed similar acts, or that he was generally negligent or unskillful. The same rule is applicable to a plaintiff seeking to show that the acts of her servant did not contribute to the accident.” (p. 198.)

In Parsons v. Syracuse, Binghamton & N. Y. R. R. Co. ( 133 App. Div. 461 ) it was held that an administrator seeking to show that a decedent, who was killed

In some states such evidence is regarded as competent. In New Hampshire it was held that the fact that a person killed at a grade crossing customarily stopped, looked and listened for trains at that point is competent to prove similar conduct at the time of the hi jury, in the absence of testimony by any eye-witness as to his behavior on that occasion. (Tucker v. Boston & Maine R. R. Co., 13 N. H. 132 .) No argument was made but the bare conclusion announced, earlier cases being’ cited which involved the custom of those running trains and of those injured at railroad crossings with reference to general care or carelessness. (State v. M. & L. Railroad, 52 N. H. 528 , 549; Smith v. Boston & Maine Railroad, 70 N. H.

In a case in California where there was a conflict of evidence as to whether the plaintiff carelessly jumped off a train while it was moving, the railroad company was allowed to show that within the year preceding the accident the plaintiff had frequently traveled over that route and had frequently jumped off the cars while in motion. (Craven v. Cent. Pac. R. R. Co., 72 Cal. 345 , 347,) The court said: “ A sensible man, called upon, out of court, to determine whether or not a certain person had on a certain occasion carelessly jumped off a moving train of cars, and finding the direct testimony as to the matter conflicting, would naturally and properly give some weight to the fact that the person was in the habit of alighting from cars in that manner "x" * A”

In Kansas it was held that the fact that a man killed on a railroad crossing was careful and sober and had previously exercised due care in passing over the same crossing, tends to repel any inference of negligence arising from the 'mere fact that he went upon the track when a train was approaching, there having been no eye-witness of the collision until he was actually upon the track. The evidence does not appear to have been objected to, and it is assumed to have been competent without argument. (Mo. & Pac. Ry. Co. v. Moffatt, 60 Kan. 113 .)

In Illinois evidence that the deceased was “ habitually cautious and temperate ” was held to be competent where there was no eye-witness of the accident, but otherwise not. (Chi., Rock I. & P. R. Co. v. Clark, 108 Ill. 113 , 117.)

On the other hand, similar evidence has been held

Professor Wigmore seems to appreciate “ the probative value of a person’s habit or custom as showing the doing on a specific occasion of the act which is the subject of the habit or custom,” but he points out difficulties which arise in connection with such evidence. (§ 92.) Thus he says: “ Can there be a habit of non acting % ” (§ 97.) “Is it possible to believe that careless action can ever be anything more than casual or occasional ? If it is, are we not really predicating a careless disposition, rather than a genuine habit, and then are we not violating the rule against character in a civil action in employing such evidence ? These doubts serve to explain the precedents that

The Messrs. Elliott in their work on Evidence say that “ Evidence of personal habit is often of some probative value and is frequently admitted; but such evidence should not be admitted when to admit it would violate the character rule, and it cannot, ordinarily, be proved that a person did or did not do a certain thing at a particular time by showing that he acted in a certain way under similar circumstances at other times.” (1 Elliott on Evidence, § 172.)

In Thompson on Negligence it is said: “Where there are no witnesses to the accident, evidence of the habitual ■ care of the deceased is often admitted on the question of his exercise of due care at the time of the accident:”. (6 Thompson on Negligence, § 7140.) . ■

Mr. Greenleaf says: “ A habit of doing a thing is naturally of probative value as indicating that on a particular occasion the thing was done as usual, and, if -clearly shown as a definite course of action, is constantly admitted in evidence. Nevertheless there are some instances in which habit may be thought to be obnoxious, to the character rule, particularly a habit of intoxication or intemperance, and a habit of carelessness or negligence; and on these points there is no uniformity of ruling. The existence of a design, plan or intention to do a thing is of some probative value to show that, it was done and instances of its use constantly recur.” (1 G-reenleaf on Evidence [16th ed.], §§ 14j and 14k.)

The weight of authority seems to be against admitting evidence of general conduct under proven circumstances to show conduct of the same kind under similar circumstances on a particular occasion, when there were eye-witnesses of the occurrence, including the person injured if

We are of the opinion that the evidence objected to should be held incompetent, and that under the circumstances the error in admitting it should not be disregarded as harmless, for it may have led to the verdict.

The judgment should be reversed and a new trial granted, with costs to abide the event.

Cullen, Ch. J., G-ray, Hiscock, Chase and Collin, JJ., concur; Willard Bartlett, J.,. concurs on second ground discussed in the opinion.

Judgment reversed, etc.