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Chisholm v. Knickerbocker Ice Co.

17 N.Y. St. Rep. 624 Court N.Y. Gen. Term Decision date 1888-06-25 English

Delivered by Dykeman, J.

Contents

Majority

p. 624
Archibald Chisholm, App’lt v. The Knickerbocker Ice Company, Resp’t.
(Supreme Court, General Term, Second Department,
Filed June 25, 1888.)

Headnote

^NEGLIGENCE—CONTRIBUTORY—DUTY OF PERSON ENTERING STREET CAR— When non-suit proper.
When the plaintiff started to go into the street to enter a car of a street railroad, he saw the ice wagon of the defendant company coming up on the same track about fifty feet ahead of the car, hut after that he did not look to see which side the wagon turned out to give place to the car, and paid no more attention to see where it went. The driver called out to the plaintiff, hut he paid no attention to the warning. Held, that he was guilty of contributory negligence. That a non-suit was properly directed. That it was plaintiff’s duty to look along the street for vehicles, and especially for the wagon which he saw in such close proximity, and from which he received his injuries.
Appeal from a judgment in favor of the defendant, entered upon a non-suit granted on the trial of the case before .a jury at the Kings county circuit.
Charles J. Patterson, for appl’t; Alfred E. Mudge, for resp’t.

This action was for the recovery of damages for an injury received from one of the ice wagons of the defendant.

The plaintiff was about to enter a car of the Court street -surface railroad; when he started to go into the street he saw the ice wagon coming up on the same track about fifty or seventy-five feet ahead of the car, but after that he did not look to see which side the wagon turned out to give place

p. 625
to the car, and paid- no more attention to see where it went. The driver called out to the plaintiff, but he paid no attention to the warning.

The complaint was dismissed at the trial for the contributory negligence of the plaintiff, and his own testimony shows ..an entire absence of care on his part. It was his duty to look along the street for all vehicles, and especially for the wagon which he saw in such close proximity, and from which he received his injuries. The slightest "glance as he was walking towards the car would have disclosed the impending danger in time for its avoidance, and his failure to exercise proper care in that respect brought about his injuries.

The judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.