Jager v. Coney Island & Brooklyn Railroad — 65 N.Y. St. Rep. 539

Majority

p. 539

John Jager, App’lt, v. Coney Island and Brooklyn Railroad Company, Resp’t.

(Supreme Court, General Term, Second Department,

Filed February 11, 1895.)

Headnote

Negligence—Contributory.

A person, who sees a street car approaching but fails to get out of the the way, though he had ample time to do so, is guilty of contributory negligence.

Appeal from a judgment dismissing the complaint.

Jacobs & Butcher, for app’lt; H. W. Slocum, for resp’t.

This is an appeal from a judgment entered at circuit in a negligence case. The plaintiff was injured on defendant’s railroad track, about 150 feet south of what is called “Manhattan Crossing,” by a car going from Brooklyn to Coney Island. The negligence, it was claimed, which caused the injury, consisted (1) in a high rate of speed on a public highway ; (2) the absence of signals ; and (3) the absence of the motorman from his post of duty. There was no difficulty in seeing both ways upon the track, a long distance. In fact, the plaintiff did see the car approaching, for a long distance, and in ample time to get out of the way of it; and, if he had stood still where he was when he saw the car coming, he would not have been injured, but he says when the car got near him he jumped in front of the car. This testimony precluded any inference of negligence in not stopping the car, or in the motorman not being at his post. In fact, the proof was that the motorman was at his post all the time, and a second or two before the accident he had turned on the power, to increase the speed. The plaintiff was traveling in a direction to meet the car,

p. 540

and had seen it in plain view, corning towards him, for a long-distance. Indeed, he saw it so far ahead of him that he took it for a man with a lantern, which does away with all necessity for signals, were the same required. The criticism that the motorman was seen, before the accident, leaning with his back against: the door, is not only puerile, but it is false, if it refers to the moment before the accident. It is apparent from the facts in evidence, putting the most favorable construction on them for the plaintiff, that no negligence whatever was shown on the part of the defendant, but that the sole cause of the accident was want of. care on the part of the plaintiff.

Judgment affirmed, with costs.

All concur.