Balla v. Metropolitan Street Railway Co.

27 Misc. 775, 57 N.Y.S. 746

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 15, 1899
• Status: Published

Opinion

Freedman, P. J.

The plaintiff in this action, as she was crossing Twenty-third street, on the way down the easterly side of Ihird avenue of this city, was run against by the horses attached tc one of defendant’s cars and thrown down and injured, for wiich she recovered a judgment in the trial court for the sum of $300 damages.

At the close of the plaintiff’s testimony the defendant made a mdiion to dismiss the complaint upon the ground that the plaintiff hat not shown herself free from contributory negligence, which moion was denied. A similar motion was again made at the closi of the case and denied. The plaintiff was going down town with a box on her head. The accident appears to have occurred whei $ie plaintiff was near the middle of the crossing. There is no eidence tp show that she looked in either direction to ascer- ■ tain f a car was approaching, nor is there any testimony as to how fir distant the car was when she attempted to cross the street. Neithr does it appear that the accident occurred through any fault f the defendant. Taking all the facts and circumstances together, the case as made/ both on the question of plaintiff’s cont-ributoy negligence, and on the question of the defendant’s negligence, vas as consistent with the exercise of due care, as with negligence on the part of Both parties, and upon such a state, of facts the plaintiff cannot recover.

Judgment reversed, new trial ordered, with cost's to the appellant to abide the event.

MacLean, J., concurs; Leventritt, J., taking no.part.

Judgment reversed and new trial ordered, with costs to appellant to abide event.