Henning v. Rothschild

34 Misc. 773, 68 N.Y.S. 840

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1901
• Status: Published

Opinion

O’Gorman, J.

The plaintiff was only required to exercise an amount of care commensurate with the apparent danger, and in proceeding forward after the passage of the car on the up track, he was not bound to anticipate that a vehicle going south would make a sharp turn at the north crossing, the point where the collision occurred. Hegligence will not be imputed to a party merely because he regulates his conduct upon the assumption that the other party will conduct himself with reasonable care. lithe defendant acted with ordinary prudence, he would not have made the turn in question until he proceeded several feet closer to the southerly crossing, and in that event the collision would be avoided. Generally the question of contributory negligence is one of fact to be determined by the jury, and is within the province of the court only where the inference of' plaintiff’s negligence is certain and incontrovertible. Kettle v. Turl, 162 N. Y. 255. We, therefore, think,the court erred in granting defendant’s motion for a nonsuit and the judgment must be reversed.

Andbews, P. J., and Blanchabd, J., concur.

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