Fitzgibbon v. Joline

Appellate Terms of the Supreme Court of New York

Fitzgibbon v. Joline

115 N.Y.S. 123

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 5, 1909

StatusPublished

Cited by1 cases

This text of 115 N.Y.S. 123 (Fitzgibbon v. Joline) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fitzgibbon v. Joline, 115 N.Y.S. 123 (N.Y. Ct. App. 1909).

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Opinion

MacLEAN, J.

The verdict herein in favor of the plaintiff, upon his claim for personal injuries alleged to have been' sustained through the negligence of the defendants, was against the weight of evidence. Williams v. N. Y. City Ry. Co., 49 Misc. Rep. 253, 97 N. Y. Supp. 393. Where the collision occurred was in dispute; the plaintiff, a driver of an ash cart, in the employ of the city, testifying that, on January 20, 1908, about 3 p. m., while in the performance of his duties, he crossed from the east to the west side "of Eighth avenue, between the north and south crosswalks of Twenty-First street, and was' struck by' á south-bound ear of the defendants, while the motorman and two disinterested witnesses of the defendants located the [124]*124place of the collision from a half to a whole car’s length south of the south crosswalk of Twenty-First street. The weight of the evidence on this point favored the defendants, thereby according to the motorman a preferential right over the plaintiff.

How the collision occurred was not, however, so disputed; the plaintiff testifying that, when his horse first stepped on the downtown track, the front of the south-bound car was about 15 feet away, yet he kept on going ahead. He was corroborated in no small measure by the disinterested witnesses of "the defendants; one testifying that the car was 6 feet from the horse when the horse started to go on the south-bound track, and the other testifying that when the plaintiff drove on the downtown track the car was about 10 feet away. Even assuming the place of the collision to have been as testified to by the plaintiff himself, under equal rights he did not satisfactorily establish his own freedom from contributory negligence, unless the law impose upon the motorman the duty to exercise greater care than upon the plaintiff, which the law does not do, where the right of the defendants was preferential, or where the rights of both parties were equal.

The judgment should be reversed, and the cause remanded for a new trial.

Judgment reversed, and new trial ordered, with costs to appellants to abide the event. All concur.

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MacLEAN, J.

The verdict herein in favor of the plaintiff, upon his claim for personal injuries alleged to have been' sustained through the negligence of the defendants, was against the weight of evidence. Williams v. N. Y. City Ry. Co., 49 Misc. Rep. 253, 97 N. Y. Supp. 393. Where the collision occurred was in dispute; the plaintiff, a driver of an ash cart, in the employ of the city, testifying that, on January 20, 1908, about 3 p. m., while in the performance of his duties, he crossed from the east to the west side "of Eighth avenue, between the north and south crosswalks of Twenty-First street, and was' struck by' á south-bound ear of the defendants, while the motorman and two disinterested witnesses of the defendants located the [124]*124place of the collision from a half to a whole car’s length south of the south crosswalk of Twenty-First street. The weight of the evidence on this point favored the defendants, thereby according to the motorman a preferential right over the plaintiff.

How the collision occurred was not, however, so disputed; the plaintiff testifying that, when his horse first stepped on the downtown track, the front of the south-bound car was about 15 feet away, yet he kept on going ahead. He was corroborated in no small measure by the disinterested witnesses of "the defendants; one testifying that the car was 6 feet from the horse when the horse started to go on the south-bound track, and the other testifying that when the plaintiff drove on the downtown track the car was about 10 feet away. Even assuming the place of the collision to have been as testified to by the plaintiff himself, under equal rights he did not satisfactorily establish his own freedom from contributory negligence, unless the law impose upon the motorman the duty to exercise greater care than upon the plaintiff, which the law does not do, where the right of the defendants was preferential, or where the rights of both parties were equal.

The judgment should be reversed, and the cause remanded for a new trial.

Judgment reversed, and new trial ordered, with costs to appellants to abide the event. All concur.

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Bluebook (online)

115 N.Y.S. 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitzgibbon-v-joline-nyappterm-1909.

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