Dunican v. Union Railway Co.

This action is brought to recover damages for injuries received by the plaintiff by reason of a collision with one of the defendant’s trolley cars, which struck him as he was attempting to drive across the highway on which the defendant’s track was laid. Upon the trial, the court, after hearing the evidence of the plaintiff, dismissed the complaint, and from the judgment entered upon that dismissal this appeal is brought. The place where the collision occurred was' a public highway known as Wan Nest’s Road,” in the county of Westchester. It was shortly after 9 o’clock at night of the 7th of July, 1895. At the place of the occurrence a private driveway from a summer resort, known as "Sulzer’s Park,” debouches into the highway on the north side. The tracks of the defendant are laid upon the north side of the highway, so that the track of a car going west is within a very few feet of the fence. On the east side of the private road, at its intersection with the highway, there stands a building extending along the highway about 30 feet, and running back 45 feet along the private road. The front of this building is within 10 feet of the defendant’s track, and this space of 10 feet is diminished by a stoop extending a few feet in front of the building. Back of this building, and on the east side of the private driveway, there are, as the plaintiff testified, trees and bushes which obstruct the view to a very considerable extent to the eastward, the direction from which the car was coining that inflicted the injury upon the plaintiff. At the time of the occurrence it was quite dark. The plaintiff was driving at a walk a quiet horse down tiie private road towards the highway. He was surrounded by a large number of people, who were also going from the park to the street. As was generally the case at that hour of the night and at that season of the year, Sulzer’s Park, being a public resort, seems to have been largely frequented by people. As to these details of the occurrence, there is no dispute.

As the complaint was dismissed at the close of the plaintiff’s case, he is entitled, upon an examination of that ruling, to the most favorable inference which can be deduced from the evidence, and, if any of the facts- are contested or doubtful, it must be assumed that they would have been found by the jury most favorably for the plaintiff. Rehberg v. Mayor, etc., 91 N. Y. 137 , 141.

As bearing upon the question of the defendant’s negligence, the jury might have found that this car approached the place where the private road intersected the highway at a high rate of speed, certainly 15 miles an hour and upward; that no gong was sounded, nor

In considering the question of the plaintiff’s contributory negligence, this duty of the defendant must not be lost sight of. The plaintiff was not called upon, as matter of law, to watch and listen for the approach of this car using the highway, as he would have been called upon to watch and listen at a country crossing of a railroad company going upon its own tracks, where it had an exclusive right, but it was proper for him to take into consideration the duty of the defendant in running along the highway, and to suppose that that duty would be performed. 2 Shear. & R. Reg. (5th Ed.) § 485a. Even if he had seen this car coming, at a rapid rate of speed, 150 or 200 feet away from the place where he was approaching the highway, as the defendant claimed he might have done, he would have had the right to assume that the driver of the car would so reduce its speed when he approached the entrance to this private driveway that persons coming out upon the highway might have an opportunity to avoid him. But the jury might have found from this evidence that the plaintiff had no opportunity to see this car until he, seated in his buggy, had passed the corner of the house which stood at the intersection of the two streets. At that time he would have been something less than 10 feet from the track, and the head of his horse would have been almost upon the track. Whether it was negligence for him to drive so close to the track, without expecting that the car would be coming upon him at the rate of 15 miles an hour, when he reached that point and saw the car as close to him as' it was, was clearly a matter for the jury. He had the right to cross the track, even though the car was approaching, and even though the fact of his crossing required the car to slacken its speed (Kennedy v. Railway Co., 31 App. Div. 30 , 52 N. Y. Supp. 551 ); and whether he had sufficient opportunity to observe the approach of the car, or used due diligence in his effort to avoid it after he became aware of its situation, was clearly a matter for the jury to determine.

The fact that this was a private driveway, upon which the learned justice at the trial term seems to have laid considerable stress, was not controlling in this connection, because the jury might have found from the evidence that it was a usual thing at that time of night for a large number of people to be coming out of this driveway upon tie highway, and that the railroad company’s employes, who were traveling along the highway, were aware of that usual condition of affairs. But even if that were not so, and the plaintiff was coming out of his own grounds, he still had the right to assume that the street car would be managed with a due regard for his right to go upon the highway, and it would be for the jury to say, in this case, whether, in view of all the circumstances, the defendant was guilty of negligence in crossing the entrance to private grounds from this highway.