Killen v. Brooklyn Heights Railroad

48 A.D. 557, 62 N.Y.S. 927

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1900
• Status: Published

Opinion

Woodward, J.:

The evidence in this case should have been submitted to the jury ; it was not such as justified the trial court in holding as a matter of law either that the plaintiff had failed to show a lack of contributory negligence, or that the defendant was free from negligence in causing the accident detailed in the complaint. The plaintiff is a woman about sixty years of age, residing in the borough of Brooklyn. On the 13th day of August, 1897, she was on the northerly side of Park avenue, between Cumberland street and Carlton avenue, and when at about the middle of the block she desired to cross over to King’s house furnishing store. At the curb she looked in both directions. There was no car coming from the ¡east, but there was a car west of the corner of Cumberland street and Park avenue, the car not yet having reached Cumberland street. Cumberland street is an asphalted street much used by bicyclists,-and it appears from the evidence that the plaintiff was aware of the custom of the defendant to bring its cars to a standstill before crossing this thoroughfare. When she looked, the. car was being slowed down' before crossing. As Park avenue is only thirty-five feet from curb to curb, and the plaintiff was one hundred feet east of Cumberland street, which is sixty feet wide, it can hardly be said as a matter of law that it was negligent of her to walk diagonally across the avenue without stopping to make further investigation. Persons walking upon or across the highways are not bound to exercise the highest possible degree of care; they meet all the requirements if they exercise a reasonable degree of care, such as persons of -ordinary prudence would exercise under the same circumstances. There was' some evidence from which the jury might have found that the plaintiff was exercising a reasonable degree of care; and as the testimony showed that the motorman was apparently engaged in conversation with some One inside of the car immediately before the accident, and that the speed of the car was constantly increasing up to-within a short distance of the point where the plaintiff was struck, a question of fact was presented which should have been determined by the jury. The complaint was dismissed, it appears, upon the authority of Johanna Hickman v. Nassau Electric R. R. Co. (36 App. Div. 376), but as that case has been, distinguished in the subsequent case of Hickman v. Nassau Electric R. R. Co. (41 App. Div. 629), where it was distinctly limited to the peculiar facts appearing in evidence, we are not disposed to consider that as an authority in the case at bar where the facts are materially different. The questions at issue are always whether there is want of reasonable care on the part of the parties, the burden of proof being upon the plaintiff to show freedom from negligence on his part, and negligence on the part of the defendant which constituted the proximate cause of the injury; and where there is evidence upon which fair-minded men may disagree, it is for the jury to determine the controversy.

The judgment appealed from should be reversed and a new trial granted, costs to abide the event.

All concurred.

Judgment reversed and new trial granted, costs to abide the event.