Bocovsky v. Buffalo & L. E. Traction Co.

This is an appeal to the County Court of Chautauqua county from a judgment of the Municipal Court of Dunkirk,, awarding the plaintiff $750 for injuries to himself and automobile upon a complaint alleging negligence upon the part of the defendant. The plaintiff is a physician and surgeon practicing his profession in the city of Dunkirk, N. Y. The defendant is a street railroad company operating a local and interurban electric railway between Dunkirk and'Fredonia and other points. The defendant has two lines of track upon Central avenue, a main thoroughfare connecting Dunkirk and Fredonia. These tracks are located in the center of the street. The accident occurred within the village of Fredonia. Fredonia is an incorporated village containing a few thousand people.

On the morning of the accident the plaintiff was driving his automobile shortly after 11 o’clock up Central avenue from Fredonia toward Dunkirk. He was driving his car between the tracks and the easterly curb of -the paved street at a rate of speed between six and eight miles an hour. As he was proceeding in this manner, the car of the defendant stopped to receive a woman who came from the easterly curb and was standing between the tracks of the defendant and the easterly curb apparently intending to take the car. A delay occurred, and the plaintiff, after looking ahead and observing no obstacles, turned to the left to pass defendant’s car. As he came upon the westerly track of defendant’s railway, he saw a south-bound car 100 feet away approaching him rapidly. The car gave no warning of its approach and was traveling at a speed of upwards of 20 miles an hour. The plaintiff immediately swung his car to the right and endeavored to avoid a collision with the on-coming car. He was struck by the car and thrown upon the pavement and injured, and brings this action for the recovery of damages sustained.

[1] Upon the argument the principal contention made by the defendant seeking a reversal of the judgment rendered by the Municipal Court was that the plaintiff was guilty of contributory negligence in attempting to pass the car of the defendant to the left while his view was obstructed by the car in front of him. The question of contributory negligence was for the trial court, and the facts and circumstances of this case amply sustained its conclusion. In turning to the left to pass the. car, the plaintiff was observing the law of the road,, and the evidence discloses that before turning to the left he looked and listened and neither saw nor heard the south-bound car. It was. the duty of the defendant in the operation of its cars in approaching cars standing upon the street receiving and delivering passengers to have the approaching car under control in order that no injury be done the public. The plaintiff had a right to presume that the defendant would observe this rule of care and caution, and, it appearing that

[2] The defendant further insisted, in support of its contention that the plaintiff was guilty of contributory negligence, that the plaintiff had knowledge that on prior occasions the defendant had driven its cars past standing cars at a high rate of speed, and that, being possessed of this knowledge, he was guilty of contributory negligence in attempting to pass the standing car under the circumstances revealed by the testimony of this case. In support of its contention it cites the case of Magar v. Hammond, 171 N. Y. 377 , 64 N. E. 150 , 59 L. R. A. 315 , as authority.

In determining the applicability of this authority, it is necessary to bear in mind the frequent admonitions of the Court of Appeals that the opinion in any case must be limited to the facts involved and should not be extended to cases where the facts-are essentially different. Crane v. Bennett, 177 N. Y. 106 , 69 N. E. 274 , 101 Am. St. Rep. 722 . The rule cited by the defendant cannot be said to apply to the facts of this case. The plaintiff was traveling upon a public highway subject only to such rules of care and caution as an ordinarily prudent man under like circumstances would exercise, having the right to assume that all persons using this highway would observe the same rule. The law will never hold it imprudent in any one to act upon the presumption that another in his conduct will act in accordance with the rights and duties of both, even though such other has once conducted himself in a contrary manner. Newson v. N. Y. C. R. R. Co., 29 N. Y. 383 .

The judgment of the trial court is affirmed, with costs of this appeal. Judgment affirmed, with costs.