Kelly v. Brooklyn Heights Railroad

The plaintiff was driving a cab on Pierrepont street, in this city, on the afternoon of December 15, 1893. When he approached Fulton street, where Pierrepont street ends, it was necessary to cross Fulton in order to be on the right hand side of the street in driving to the New York and Brooklyn bridge. In crossing, plaintiff’s cab was struck by a trolley car, and he sustained damage to his person and property. There are many lines of cars on Fulton street on the block in question, and it is safe to say that there is no other block in the city where more cars pass in a given time. The learned counsel for the appellant contends that it is negligence for a person in a vehicle to attempt to cross a street-railway track a short distance in front of an approaching car. The rule of law contended for is undoubtedly correct as a general proposition, but has its exceptions. Such a rule cannot be rigidly applied where a vehicle is run into by a street car on a thoroughfare crowded with cars. The railroad company does not have the exclusive right to the use of the street; it does have a paramount right over vehicles. If the company runs so many cars that vehicles must wait till there is no car in sight in order to cross, the drivers would have to wait till late in the evening. It is the duty of the railroad company, in the vicinity of the city hall for example, not to block the streets, but occasionally to give way to the drivers of vehicles who wish to cross. On the other hand, the drivers must not be reckless; must not drive directly in front of an approaching car; must be prudent