Binns v. Brooklyn Heights Railroad — 85 N.Y.S. 874

Majority

p. 874

(89 App. Div. 359.)

BINNS v. BROOKLYN HEIGHTS R. CO.

(Supreme Court, Appellate Division, Second Department.

December 30, 1903.)

Headnote

1, Street Railways—Personai. Injury—Crossings—Failure to Look.

A street car which plaintiff desired to board having started as he arrived at the corner, the conductor called to him to come on across the street; and while following in the rear of the car, and almost abreast of it, he was struck by a car running at a high rate of speed on an intersecting line. Plaintiff did nqt testify that he looked for the car on such intersecting line before stepping on the track, hut stated that he could not see such car until it struck him, because his view was obstructed by the car he was following. Held, that it could not be said, as a matter of law, that he was guilty of contributory negligence, and that the question was for the jury.

1T1. See Street Railroads, vol. 44, Cent. Dig. §§ 207, 208.

Appeal from Municipal Court of New York..

Action by Julian Binns against the Brooklyn Heights Railroad Company. From a, judgment for plaintiff, defendant appeals.

Affirmed.

Argued before BARTLETT, JENKS, WOODWARD, HIKSCHBERG, and HOOKER, JJ.

H. F. Ives, for appellant.

Walter G. Rooney, for respondent.

The plaintiff was injured on the night of February 26, 1902, while crossing Nostrand avenue, in the borough of Brooklyn, on the south side of De Kalb avenue. He had just crossed from the northeast to the southwest corner of the two avenues for the purpose of talcing a De Kalb avenue car going eastwardly. The ■car had, however, started eastwardly across Nostrand avenue, and the conductor called to him to “come on” to the east Nostrand ave

p. 875

"irae crossing. As he was crossing Nostrand avenue, about abreast •■of the rear of the De Kalb avenue car, and while on the first or southerly bound track of the Nostrand avenue line, operated by the defendant, a car of that line shot rapidly over the crossing, and, striking the plaintiff, inflicted personal injuries, for which he has recovered.

The defendant offered no evidence in defense, but insists on the appeal that the complaint should have been dismissed for the plaintiff's assumed failure to establish freedom from contributory negligence. It is true that the plaintiff did not testify that he looked for a car from the north before stepping on the Nostrand avenue track, but he distinctly testified that he could not see the car until it struck him, 'because his vision was obstructed by the intervening De Kalb avenue ■car. The situation -was therefore within the line of authorities which absolve the pedestrian from the exercise of a caution which would necessarily be futile in results, and is distinguishable from the situation presented in the cases cited by the appellant, where a glance would have disclosed the peril. There is no question but that the Nostrand avenue car was run over the'crossing in this instance at a very high rate of speed, and without regard to the rule of diligence, ■which requires care to be taken at such a place to keep the car well ■ under control, and upon which rule travelers are certainly entitled •to rely to some extent. In view of all the circumstances, it seems -clear that the case was properly disposed of, and the judgment should :be affirmed.

Judgment affirmed, with costs. All concur.