Macaluso v. Traube-Berger Co.

Headnote

Macaluso v. Traube-Berger Co., 172 App. Div. 898 , appeal dismissed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 27, 1916, unanimously affirming a judgment in favor of defendant entered upon an order of the court at a Trial Term setting aside a verdict in favor of plaintiff and directing a dismissal of the complaint in an action to recover for personal injuries alleged to have been sustained-by plaintiff through the negligence of defendant. Plaintiff while crossing Flatbush avenue, Brooklyn, from the east to the west side, not at a crossing but in the middle of the block between Newkirk avenue and Stephens court, passed directly in front of an approaching south-bound trolley car. When he left the track on which it was running it was only three or four feet away from him. He kept right on and was struck by the-defendant’s automobile, which was going southerly alongside of the trolley car three or four feet west of the car. The trial judge set aside the verdict in plaintiff’s favor and dismissed the complaint on the ground- that plaintiff had failed to affirmatively show his own freedom from contributory negligence or any negligent act or acts of the chauffeur in the operation and running of his

automobile. The Appellate Division based its affirmance upon the ground that the evidence, as matter of law, affirmatively established that plaintiff was guilty of contributory negligence.