Majority
p. 1077STEWART v. BEAVER (two cases). (Supreme Court, Appellate Term, First Department. October 25, 1916.) Argued October term, 1916, before GUY, BIJUR, and SHEARN, JJ.
Headnote
Street Railroads <§=>98 (7)—Crossing Accident—Care.A traveler, who noticed that a, rapidly approaching car was about 30 feet from her when she was about 7 feet from the track, is guilty of contributory negligence, barring recovery for injuries from a collision, where she proceeded without further observation onto the track.
[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. § 207; Dec. Dig. <@=>98(7).]
<§^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Appeal from City Court of New York, Trial Term.
Actions by Margaret Stewart, an infant, by David Stewart, her guardian ad litem, and by David Stewart against John Beaver, as receiver of the Second Avenue Railroad Company. From a judgment in favor of the several plaintiffs, defendant appeals. Reversed, and complaint dismissed.
Charles E. Chalmers, of New York City (Charles H. Tuttle and Harold R. Medina, both of New York City, of counsel), for appellant.
Fowler & Lesser, of New York City, for respondents.
The plaintiff’s cause of action is for personal injuries received from a trolley car operated by defendant. Plaintiff’s own testimony is that, as she was crossing Second avenue proceeding west, she stepped upon the northbound track when defendant’s southbound car was 26 feet distant from her and approaching rapidly. At this time she was between 7 and 10 feet from the southbound track. Without further attention she proceeded on her way and was struck by the car. The accident was so manifestly one due to plaintiff’s contribu
p. 1078
tory negligence that, regardless of any question' as to defendant’s possible freedom from negligence, the complaint should have been dismissed.
Judgment reversed, with costs, and complaint dismissed, with costs. All concur.