Pack v. City of New York — 99 N.Y.S. 867

Majority

p. 867

PACK v. CITY OF NEW YORK et al.

(Supreme Court, Appellate Term.

June 28, 1906.)

Headnote

Municipal Corporations—Obstructions in Street—Contributory Negligence—Evidence.

In an action for injuries caused by the vehicle in which plaintiff was riding striking an obstruction in the street, evidence examined, and held, insufficient to show contributory negligence, so as to justify taking the case from the jury.

Appeal from Municipal Court, Borough of Manhattan, Eighth District.

Action by Mary Pack against the city of New York and another. From a judgment in favor of defendant, plaintiff appeals.

Reversed and remanded.

Argued before GILDERSLEEVE, and LEVENTRITT, and McCALL, J J.

p. 868

Joseph E. Cavanaugh, for appellant.

John J. Delany. (Theodore Connoly and Thomas F. Noonan, of counsel), for respondent city of New York.

Fredk. E. Fishel, for respondent Silverson.

This case is one in which a recovery is sought for injuries sustained through alleged negligence of defendants. The plaintiff was riding in a carriage driven by a Dr. Elynn going northwardly along Eighth avenue in this city. The night was dark and it was raining. As they approached 130th street, and when within 5 to 8 feet of the obstruction with which they collided, the plaintiff, who according to her story was looking out all the time, saw the pile of material on the roadway and called to her companion, warning him-of its existence. She had no control of either driver or horse, and whatever negligence Dr. Elynn may have been guilty of cannot be imputed to her. There is a disputed question of fact as to whether, there were any lights about the obstruction, and upon the whole I am of the opinion that the question of the appellants being guilty of any act of contributory negligence should have been left to the jury.

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