Curry v. Union Electric Railway Co. — 67 N.Y. St. Rep. 551

Majority

p. 551

David Curry, Resp’t, v. Union Electric Railway Company, App’lt.

(Supreme Court, General Term, Third Department,

Filed May 14, 1895.)

Headnote

Negligence — Contributory.

The facts and circumstances, in the case, were held to make the question of plaintiff’s freedom from contributory negligence one for the jury.

Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

John L. Henning, for app’lt; John Foly, for resp’t.

The only point in this case that strikes me is as to whether there was any evidence of a lack of contributory negligence on the part of the plaintiff to submit to the jury. It appears that on the east side of Nelson avenue there were several buildings that somewhat obstructed the view of the defendant’s tracks; also a burn east of the Wiggin’s house ; that the plaintiff, as he approached the track, looked between the house and the barn, and saw nothing upon the track. It appears also that, for a space of some feet, the Wiggin’s house entirely obstructs the view of the tracks, looking east, until a point is reached distant eighty feet from the south rail of defendant’s tracks, at which point said tracks can be seen for a distance of 100 feet from the center of Nelson avenue. At sixty feet from the south rail, defendant’s tracks can be seen for a distance of 136^- feet -p and forty-six feet therefrom the defendant’s tracks can be seen for a distance of 289 feet. The plaintiff, it appears, was standing on the right-hand or east side of the wagon. His attention was directed to a car to the west of Nelson avenue, and some 500 feet distant from the crossing at which point it turned off on Adams street. He does not seem to have looked continuously, but, as he turned and looked to the east, he discovered the car- forty or forty-five feet distant; his horses at that time being almost upon defendant’s tracks. . Doing at any rate of speed that was testified to upon the trial, either at eight or twenty miles an hour, it would take the defendant’s car but a few seconds to traverse the difference between forty or forty-five feet and 136 feet, at which it appears the plaintiff could have seen the car, when sixty feet away, or 289 feet, when forty-six feet away from the south rail. It will thus be seen that "the diversion of plaintiff’s attention from the car coming from the west for but a very short period of time would enable defendant’s car, coming

p. 552

from the east, to cover the distance at which it could be seen after the line of plaintiff’s vision reached beyond the Wiggin’s house, until the car would be almost upon plaintiff’s vehicle. It was the plaintiff’s duty to look both ways. He looked to the east at one point. He then reached a point where he could no longer look to the east. He then looked to the west. His attention was detained there for a moment, and, when he looked to the east again, the car was almost upon him. It seems to me, therefore, under the circumstances, that this is a case for the jury to determine. Judgment should therefore be affirmed, with costs.

Putnam, J., concurs; Stover, J., not acting.