McEntee v. Metropolitan St. Ry. Co.

This action was brought to recover damages for personal injuries received by the plaintiff through the alleged neg

I am of the opinion the complaint should have been dismissed, and that the exceptions taken to the refusal of the court to make such disposition of the case were well taken. The undisputed facts show that the plaintiff was guilty of contributory negligence, and had he exercised the care which the law imposed upon him, the accident would have been avoided. The defendant operated two lines of cars on Eighth avenue, one going in a northerly direction on the easterly and the other in a southerly direction on the westerly side of the avenue. About 11 o’clock in the forenoon of thee28th of February, 1902, plaintiff attempted to cross from the easterly to the westerly side of the avenue, a little south of the south crosswalk at 132d street, and in doing so was struck by a south-bound car, sustaining the injuries of which he complains. Immediately before, or while crossing the avenue, he saw a car approaching from the south and also one from the north. According to his testimony, he paid no attention to the south-bound car after he saw it, but walked in front of it, and was struck just as he had taken or was about to take the second step on the track on which that car was running. This car, when he saw it, was a little above the north crossing of 132d street, which, according, to the testimony of his witness Cohen, was only 40 or 50 feet from the place where the accident occurred, and when he stepped upon the track, only 5 or 6 feet from him. There was nothing to obstruct his view. He could have seen the car had he looked. Nor was there anything to distract his attention, except the car going in a northerly direction. He knew a car was approaching from the north as well as from the south, and it was his duty to avoid, if possible, ,a collision with either of them; and, had he paid the slightest attention to the south-bound car, he would not have been struck by it. The testimony of the plaintiff, as well as the testimony of his witnesses, bearing upon his movements, from the time he left the sidewalk until he was struck by the car, shows that he paid no attention to the car approaching from the north, but carelessly and heedlessly stepped directly in front of it.

It may be conceded that there was sufficient evidence to go to the jury upon the defendant’s negligence, but if such concession be made, it does not aid the plaintiff, because even though the defendant were negligent, plaintiff could not recover, unless he himself were free from negligence, and his own evidence showed that he was not. He, therefore, failed to meet the burden, which rested upon him of showing such fact, and the complaint should have been dismissed. Lynch v. Third Ave. Ry. Co., 88 App. Div. 604 , 85 N. Y. Supp. 180 ; Jackson v. Union Railway Co., 77 App. Div. 161 , 78 N. Y. Supp. 1096 ; Greene v. Metropolitan St. Ry. Co., 100 App. Div. 303 , 91 N. Y. Supp. 426 ;

The judgment and order appealed from, therefore, must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.