Scott v. United Traction Co. — 241 N.Y. 576

Majority

p. 576

Edwin W. Scott, Appellant, v. United Traction Company, Respondent.

Headnote

Negligence — railroads -— action by driver of automobile to recover for personal injuries received as result of being struck by trolley car while crossing track — contributory negligence a question for jury.

Scott v. United Traction Co., 211 App. Div. 826 , reversed.

(Argued October 30, 1925;

decided December 1, 1925.)

Appeal from a judgment, entered June 4, 1925, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon a verdict 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 was driving his automobile across defendant’s tracks in

p. 577

Washington avenue in the city of Albany when a trolley car approaching from the west collided with him causing the injuries complained of. It appeared that he had parked his car heading south about twenty feet west of the intersection of a short street which did not continue beyond the avenue. He entered his automobile, started the engine, looked west and saw a trolley car standing at the next corner and started slowly to cross the street for the purpose of proceeding west. He looked toward the east and when within one or two feet of the track again toward the west, when he saw the car fifty or sixty feet away advancing at a high rate of speed. '

Walter A. Fullerton for appellant.

P. C. Dugan and John E. MacLean for respondent.

Judgment of the Appellate Division reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Divilion. Held, that the question of plaintiff’s contributory negligence was one of fact for the jury.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.