Malizia v. Brooklyn Heights Railroad — 110 N.Y.S. 1003

Majority

p. 1003

MALIZIA v. BROOKLYN HEIGHTS R. CO.

(Supreme Court, Appellate Division, Second Department.

June 5, 1908.)

Headnote

Street Railroads—Injury to Person Near Track—Contributory Negligence. j

Whether one at work repairing the tracks of a steam railroad where crossed by those of an electric street railway, and who to do the work had to be on and by the track of the street railway, and who before bending down, right by the street car track, to put a plank in position by the rails, saw a street car coming 150 feet away, by which he was struck while in such position, was guilty of contributory negligence, is a question for the jury, as he may have supposed that with the car so far away he could safely stay awhile yet, especially as the street car was required by law to stop before crossing the tracks of the steam railroad.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 44, Street Railroads, §§ 251-257.]

Appeal from Trial Term, Queens County.

Action by Prank Malizia against the Brooklyn Heights Railroad Company. Prom a judgment for defendant, plaintiff appeals. Reversed, and new trial granted.

Argued before WOODWARD, JENICS, RICH, MILLER, and GAYNOR, JJ.

George P. Hickey (M. P. O’Connor, on the brief), for appellant.

D. A. Marsh, for respondent.

The plaintiff and four others were at work repairing the tracks of the Long Island Railroad (a steam railroad), at the point

p. 1004

where they are crossed by the tracks of the defendant (an electric street railway). They had to be upon the track of the defendant, and by it, to do the work. As the plaintiff was bent down putting a plank in position by the rails a car of the defendant came up behind and hit him. He was right by the defendant’s track. Befdre he bent down he saw the defendant’s car coming about 150 feet away. He was nonsuited for contributory negligence. That was for the jury. Men often have to work on car tracks, and with cars passing at frequent intervals they have to do the best they can to avoid danger and yet do the work. The plaintiff may well have supposed that with the car so far away he could safely stay awhile yet, especially as the car was required by law to stop before crossing the tracks of the steam road.

The judgment should be reversed.

Judgment reversed, and new trial granted; costs to abide the event. Ail concur.