p. 700BEETHEM v. INTERURBAN ST. RY. CO.(Supreme Court, Appellate Term.Headnote
1. Street Railways—Persons on Streets—Contributory Negligence—Evidence.In an action for injuries by a street sweeper against a street railroad, evidence held insufficient to show that plaintiff was in the exercise of due care.
Appeal from Municipal Court, Borough of Manhattan, Seventh District.
Action by William Beethem against the Interurban Street Railway Company. From a judgment of the Municipal Court for plaintiff, defendant appeals. Reversed.
Argued before FREEDMAN, P. J., and TRUAX and GIRDER-SLEEVE, J J. •H. A. Robinson (A. K. Wing, of counsel), for appellant.
Harrison, Seasongood & Edwards, for respondent.
The plaintiff was a street sweeper, and, while at work between Forty-Ninth and Fiftieth streets and Second avenue, was struck by one of the defendant’s cars, and brings this action to recover damages for personal injuries and loss of time. The plaintiff testifies that he was working within four or five inches of the west rail of the south-bound track when he was hit by the car. Plow long he had been in that position, does not appear. He had been sweeping from Forty-Third street north, and had got near the corner of Forty-Ninth street; and, as he says he had been working “all over the street,” his position at the time he was struck by the car may be presumed to have been temporary. He was familiar with the locality, and knew that cars ran over the tracks. Plow far distant the car was when he to'olc up this position is not shown; nor is it shown that he at any time
p. 701looked to ascertain whether a car was far from or near to him. He showed nothing from which it could be inferred that he took any care whatever to avoid danger. So far as ■ appears from the testimony in the case, the car, at the very moment the plaintiff took up his position four or five inches from the west rail, may have been so near him that it would have been absolutely impossible for the motorman to have stopped it in time to prevent injury. While it has been held that persons engaged upon the streets in public service are merely bound to use reasonable care to avoid the dangers by which they are beset, the cases have not gone as far as to hold that such persons need exercise no care whatever. The witnesses called to corroborate the plaintiff do not aid him in this respect, as neither of them testifies that they saw him before he was struck by the car.
Judgment reversed and a new trial ordered, with costs to the appellant to abide the event. All concur.