Balla v. Metropolitan Street Railway Co.

The plaintiff in this action, as she was crossing Twenty-Third street, on the way down the easterly side of Third avenue of this city, was run against by the horses attached to one. of defendant’s cars, and thrown down and injured, for which she recovered a judgment in the trial court for the sum of $100 damages. At the close of the plaintiff’s testimony, the defendant made a motion to dismiss the complaint upon the ground that the plaintiff had not shown herself free from contributory negligence, which motion was denied. A similar motion was again made at the close of the case, and denied.

The plaintiff was going downtown, with a box on her head. The accident appears to have occurred when the plaintiff was near the middle of the crossing. There is no evidence to show that she looked in either direction to ascertain if a car was approaching; nor is there any testimony as to how far distant the car was when she attempted to cross the street. Neither does it appear that the accident occurred through any fault of the defendant. Taking all the facts and circumstances together, the case as made, both on the question of plaintiff’s contributory negligence, and on the question of the defendant’s negligence, was as consistent with the exercise of due care as with negligence, on the part of both parties; and, upon such a state of facts, the plaintiff cannot recover.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event.

MacLEAN, J., concurs. LEVENTEITT, J., taking no part.