p. 357Where the injury sued for was caused by a street ear passing easterly, along a street running east and west, and rounding a curve southerly, into a street running north and south, striking the injured party at the northwest corner of the streets, and there is evidence that the car approached and rounded the corner at a rate of five or six miles an hour, and the driver testified that he saw the party when he was a block away in the street running east and west, that there was nothing between the car and the injured party, and it did not appear that the driver attempted to stop the car until it was close to the injured party, or that there was anything to prevent the driver from stopping the car before it struck the injured party, Held, that the question of defendant’s ■ negligence was properly submitted to the jury, and in connection with this evidence, the jury might consider the ordinance prohibiting the turning of corners with vehicles or horse, or horses, at a greater speed than three miles an hour.
Contributory negligence.—The rule as to the duty of a person about to cross a steam railroad track does not apply in equal strictness to a person about to cross a horse-railroad in a crowded street in a city. A failure to see an approaching street car under such circumstances is not, as matter of law, contributory negligence.
Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.Appeal from judgment entered on the verdict of the jury on order denying motion for a new trial.
The facts sufficiently appear- in the opinion.
Leslie W. Russell, attorney and of counsel, and Welton O. Percy, of counsel, for appellant, among other things, argued:—
Taking plaintiff’s own version of the occurrence, he cannot recover. He was negligent in not looking for the car before he stepped on the track. His own testimony is fatal. The day was clear. Plaintiff was thoroughly familiar with the place. He was on foot, and could easily have taken care of himself if he had not blindly walked on the track—thinking about his crabs. Young v. N. Y., L. E. & W., 107 N. Y. 500 ;
p. 358Woodard v. N. Y., L. E. & W., 106 Ib. 369 ; Cordell v. N. Y. C. Co., 75 Ib. 330; Connely v. N. Y. C. Co., 88 Ib. 346; Salter v. U. & B. Co., 75 Ib. 273; Weber v. N. Y. C. Co., 58 Ib. 451. Add to all the other considerations the noise necessarily made by the car, especially if coming rapidly and it is perfectly plain that the so-called obstacles to the plaintiff’s observing the approach of the car, if he had paid the slightest attention, existed only in his own imagination. Cordell v. N. Y. C. Co., supra; Salter v. U. & B. Co., supra; Haight v. N. Y. C. Co., 7 Lansing, 11. But assume that he could not see. The law requires him to use all his senses, his ears as well as his eyes. To listen as well as to look. And if there were obstructions to his vision, the more imperative became his duty to stop and listen. He did neither and heedlessly and blindly walked on the track.Townsend, Dyett & Einstein, attorneys, and B. F. Einstein of counsel for respondent, argued :—
I. The accident was caused solely by the negligence of the driver of the car, and there was no contributory negligence on the part of the plaintiff. The driver drove his horses, upon a down grade and around the corner of Beekman and South streets into South street, at the rate of five or six miles an hour, in defiance of the ordinance restricting the speed of horses under such circumstances to three miles an hour. It is very evident that this misconduct of the driver was the sole cause of the accident. The defendant insists that it was the duty of the plaintiff before venturing to cross the street to stop and look for a car. The plaintiff did not owe to the defendant the exercise of extraordinary care. The diligence which the law required of him was such as a prudent man would ordinarily exercise under similar circumstances. To hold, as matter of law, that the plaintiff should have stopped at the edge of the track and looked for a car would be requiring him to
p. 359exercise extraordinary care. Not one man in a thousand in this city, under the same circumstances, would have stopped, and peeped from behind the wagons up the track for a car. It may have been a proper question for the jury to decide, whether his omission to stop was negligent, but it cannot be held that such omission is negligence per se. Kellogg v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 72 ; Wilcox v. Rome, Watertown & Ogdensburg R. R. Co., 39 Ib. 358 ; Massoth v. Delaware & Hudson Canal Co., 64 Ib. 524; Davis et al. v. N. Y. C. & H. R. R. Co., 47 Ib. 400; Thompson v. N. Y. C. & H. R. R. R. Co., 16 N. Y. State Rep. 869.II. The plaintiff, not seeing the horses of the car when he started to cross the track, was justified in relying upon the belief that the driver of the car would observe the ordinance requiring him to walk his horses around the curve. Newson
v. The New York Central R. R. Co.,
29 N. Y. 383 . It was for the jury to say whether, under the particular circumstances of this case, the plaintiff was justified in believing that there was sufficient time for him to cross the track in safety, Jetter
v. N. Y. & H. R. R. R. Co., 2
Abb. App. Dec. 458; Mentz
v. Second Avenue R. R. Co., 3
Ib. 274; O’Donnell
v. The N. Y. & Harlem R. R. Co., 8
Daly, 409 ; Hegan
v. Eighth Avenue R. R. Co.,
15 N. Y. 380 .
The only exceptions in the case are to the denials of defendant’s motions to dismiss the complaint, made at the end of plaintiff’s testimony, and again at the end of the case.
p. 360The case was submitted to the jury. No exception was taken to the charge.
The only question presented is, whether on the whole case there was evidence to justify the jury in finding that the defendant was negligent and that the plaintiff was free from contributory negligence.
There was evidence tending to show that the car was being driven at the rate of five or six miles an hour. Plaintiff swore that he was crossing the street; that he could not see the 6car until he got in the middle of the track, when he discovered that the car was on him; that he jumped over by a box of crabs and the car struck him and knocked him over on the crabs.
The defendant’s driver swore that he saw the plaintiff standing in front of a fish box in the street. He crossed as far as the front of the box and when the car got to him he stopped as if to get some crabs. The driver put the brakes on and just touched him; that the driver saw the plaintiff when he was a block away. There was nothing between the plaintiff and the car.
It does not appear that the driver attempted to stop the car until he was close to the plaintiff, or that there was anything to prevent him from stopping the car before the plaintiff was struck.
On this testimony the court was justified in submitting the question of the defendant’s negligence to the jury. It was for the jury to say whether it was prudent to drive the car at the rate of speed that they find the car was driven around the corner in such a locality, and to consider in that connection the ordinance of the city of New York, which prescribed, that any person upon turning a corner upon any street in the city of New York, shall not ride or drive any horse or horses at a greater speed than at the rate of three miles an hour.
I also think that there was evidence that would justify the jury in finding that the plaintiff was free from negligence that contributed to the injury.
The rule that has been laid down in regard to persons
p. 361about to cross a track of a steam railroad, does not apply in equal strictness to a person about to cross a crowded street in a city which is used for a horse railroad. A person about to cross a city street has to protect himself against not only railroad cars, but also against wagons and trucks using the street, and while he is bound to be vigilant and cautious, I do not think it can be said to be contributory negligence, as matter of law, because he fails to see an approaching car.
It is for the jury to say whether, under all the circumstances, plaintiff was negligent.
Upon the whole case I think no error was committed, and that the judgment and order should be affirmed with costs.
Sedgwick, Ch. J., and Freedman, J., concurred.