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Bertsch v. Metropolitan Street Railway Co.

74 N.Y.S. 238 Court N.Y. App. Div. Decision date 1902-01-17 English

Delivered by WOODWARD, J.

Contents

Majority

p. 238
(68 App. Div. 228.)
BERTSCH v. METROPOLITAN ST. RY. CO.
(Supreme Court, Appellate Division, Second Department.
January 17, 1902.)

Headnote

1. Street Railways—Crossing—Contributory Negligence—Persons Crossing Track—Rights—Charge.
Plaintiff, driving on a city street, saw a street car near him, going-uptown on the nearest track, and a car coming downtown on the other track, at rapid speed, some 300 feet away. He checked his horse until the nearest car had passed, and drove hack of it. When he reached the point where he could see the other car, his horse was on the track, and the car was coming at a rapid rate, and only 20 or 30 feet away. He whipped up his horse, but the hind wheels of his buggy wore struck by the car, throwing him to the ground, and he was injured. Held, that the court properly refused to hold that plaintiff was guilty of contributory negligence in going on the track in front of the car, knowing that it was running at such rapid rate, since plaintiff had a right to presume that the speed of the car would be checked on approaching the crossing.
U. Same—Instruction
Any error in charging that plaintiff “had the right to assume that the car would not be run in such a way as to endanger him” was obviated by adding, “Every person Who uses the street crossings has a right to assume that the people who are operating street cars are exercising them with due regard to the rights of others, and that they will exercise • ordinary care and prudence in their operation.”
p. 239
3. Same—Operation of Car—Notice.
Where a person driving to cross a street railway at a street crossing sees a ear, running at a rapid rate, 300 feet distant, such fact is not notice to him of an intention to continue such rate of speed in disregard of the rights of others at the crossing.
4. Same—Damages—Amount.
Where plaintiff in a personal injury case—a young man—appears to have sustained the permanent crippling of a limb, in addition to temporary suffering, a verdict for $4,346.93 is not excessive.
Appeal from trial term, Kings county.
Action by George Bertsch against the Metropolitan Street Railway Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.
Affirmed.
Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and JENKS, JJ.
Henry Melville (Henry A. Robinson, on the brief), for appellant.
Otto H. Droege, for respondent.

The evidence which the jury in this case appears to have accepted as giving a true statement of the accident in which the plaintiff sustained serious injuries, and which is sufficient to support the judgment, indicates that on the 19th day of November, 1899, the plaintiff was driving a wagon westerly along Waverly place, which crosses Sixth avenue, in the borough of Manhattan, at right angles, intending to cross the said avenue. Before reaching the tracks of the defendant, which operates two lines of rails upon Sixth avenue, the plaintiff looked in both directions, and saw a car approaching from downtown. He drove forward, and when about 15 feet from the first track, which was used for the uptown cars, he looked uptown and saw a car about 250 to 300 feet away coming downtown at a rapid rate. He does not appear to have stopped,—the uptown car passing him before he had reached the tracks,—and his horse passed in the rear of the car going uptown. When the plaintiff’s horse had reached the downtown track, and the plaintiff was in a position to look uptown, he looked in the direction of the approaching car, and found that it was only 20 or 30 feet away, still running at the same rate of speed at which it had been advancing when he first saw it, some 300 feet away. With matters in this situation, the plaintiff used his whip, and succeeded in getting himself out of range of the car; but the rear wheel of the vehicle was struck by the car of the defendant, and the wagon was thrown over, the plaintiff was thrown upon the pavement, and the injury of which he complains resulted. The jury found a verdict in favor of the plaintiff. There was a clear conflict of evidence, the defendant’s witnesses testifying that the plaintiff’s wagon was struck by the car going uptown; but the jury refused to accept this version oí the accident, and brought in a verdict for the plaintiff, resulting in a judgment ior $4,346.93. The defendant appeals from the judgment, and from an order denying a motion for a new trial upon the minutes.

The evidence of the plaintiff and his witnesses is that the car which struck his wagon was running at the rate of 12 to 15 miles per

p. 240
hour, and the defendant asks this court to hold that the plaintiff was guilty of contributory negligence in going upon the track in front of the car knowing that it was running at this rate. We think the learned court correctly charged the jury that the plaintiff had “the right to assume that the car coming south would not be run in such a way as to endanger him. Every person who uses the street crossings has a right to assume that the people who are operating street cars are exercising them with a due regard to the rights of others, and that they will exercise ordinary care and prudence in their operation. To that extent they have a right to rely upon the conduct of the people who are operating street cars.” If the charge had closed with the first sentence, there might be doubt that it failed to state the law correctly, but, as modified and explained by the remainder of the charge, there is no reason to believe that the jiiry received any false impressions; for the charge says no more than that the plaintiff had a right to assume that the car of the defendant would be operated in a manner consistent with his rights at a street intersection, where both parties have an equal standing. If the car had approached, this crossing under control, as was the duty of the defendant, there can be no doubt that the plaintiff would, in the exercise of that reasonable degree of care which the law demands of him as a condition of recovery, have been able to pass over in safety. Because the car was running at a rapid rate of speed 300 feet distant was no notice to the plaintiff that the defendant intended to continue this rate of speed in disregard of the rights of others at a street intersection, and the evidence clearly indicates that when the plaintiff next had an opportunity of observing the defendant’s car it was so close upon him, and his horse was so far advanced, that the use of the whip was the only practical thing left. At least, the jury were justified in holding that the action of the plaintiff under the circumstances was an exercise of that degree of care which a reasonably prudent man would or should have used under similar circumstances, and the courts have been reluctant to hold that the plaintiff had failed to sustain the burden of proof under facts such as are here presented. It is not the duty of persons driving in a populous city to wait until there are no cars in sight. They have a right at street crossings precisely the same as those which belong to the street surface railroads, and, if these corporations will persist in operating their cars in disregard of this right of others, they must expect to settle for the damages which their negligence entails upon individuals. This case so closely resembles in its material facts that of Mowbray v. Railroad Co., 59 App. Div. 239 , 69 N. Y. Supp. 435 , that it does not appear necessary or profitable to discuss the matter further. The plaintiff’s evidence is sufficient to support the judgment, and the damages do not appear to us excessive, where a young man bids fair to go through life with a permanently injured limb, and who-has already suffered much by reason of the wrong done him by the defendant.

The judgment and order appealed from should be affirmed, with costs. All concur.

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