Dater v. Fletcher

This action was for damages - resulting from a collision between the vehicles of the respective parties, and the-

The facts which the evidence amply supports follow: Plaintiff was driving his carriage at a walk, proceeding in a southerly direction, from the entrance of Central- Park at Eighth avenue, to the intersection of Broadway with the “ circle,” the latter a large open space, covered with concrete and sand, deadening the sound of horses and vehicles which might be driven thereon. The entrance to the park abutted upon the circle, and plaintiff's course was in a line across it, and called for his traversing at right angles the tracks of the Cross-Town Railway, a double-track street railroad proceeding along Fifty--Uinth street, east and west, and crossing the circle. Defendant’s servant turned his wagon, driven at a very high rate of speed, into the circle, and upon the southerly track of the railway, when the plaintiff’s horse had reached the northerly track ; the vehicles being at that time about 150 feet apart. Both parties maintained their respective rates of speed, and the accident occurred through the plaintiff’s hind wheel being struck by a wheel of the more rapidly moving wagon, before' the northerly track had been completely crossed by the plaintiff.

It must be taken as established that the defendant’s servant was negligent,—in fact, it is so conceded; but the claim is made that the plaintiff, in failing to turn his head for the purpose of seeing in both directions when approaching the car track, was himself at fault. We cannot so view the case. The situation wa, not such as is presented where an approach is made to a crossing-the dangerous nature of which and the difficulty of proper obsers vation before the locality is reached requiring more than ordinary diligence upon the part of the person making the attempt to cross, since here there was no obstruction to the view,— in fact, no “ crossing,” as the word is to be understood. These vehicles but approached one another upon an open space, and the line taken by either one might be said to cross the path of .the other. The evidence shows that the plaintiff looked to the front when proceeding upon his course. Thus, the locality being as noted, he was reasonably in a position to observe any approaching danger from vehicles expected to cross his path, to which effect is his own testimony. Under these circumstances, the question was not one of law, but of fact; and the jury was well authorized, upon the proof adduced, to draw the inference that the accident was due solely to the recklessness of the defendant’s servant. See Chisolm v. State, 141 N. Y. 246 ; 56 St. Rep. 811 . That this individual was driving at a very rapid rate when distant 150 feet from the plaintiff did not, as matter of law, require the latter to take note of the fact, rein in his horse, and forego his attempt to gain his objective point. He could rely upon the exercise of ordinary care upon the part of the defendant’s servant, as of any other driver in the street The duties of the parties were córrela

Judgment and order affirmed, with costs.

All concur.