Lipis v. Metropolitan Street Railway Co.

112 A.D. 909, 98 N.Y.S. 259

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1906
• Status: Published

Opinion

Patterson, J.:

The judgment in favor of the plaintiff in this action and the order denying a motion for a new trial must be reversed. From the evidence adduced on the plaintiff’s behalf it is impossible to understand the conditions and the surrounding circumstances in which the accident resulting in his injury occurred, apd he has completely failed to show freedom from contributory negligence. It appears that on the day mentioned in the complaint the infant plaintiff, a boy twelve years of age, was at the southeast corner of Second avenue and One Hundred and Fifteenth street, intending to cross the avenue from east to west. He testifies that he looked up and down Second avenue forapproaching cars; that he saw a car on-the easterly track about four or five houses from the corner; (that car was proceeding uptowm He also swears that at the same time he saw another car going downtown-- that is to say, on the westerly track, and that it was-at One Hundred and Fifteenth street. He did not look again until he was on the easterly track, and when he was getting off the last rail of the track the north-bound..car.struck him.. Again, he-.states that he was on the track before he looked a second time, and that he stood waiting .for “ the other ” — that is the downtown — car to pass, He was struck and injured by the uptown car. He also testifies that he .was prevented from crossing the avenue by the south-bpund car;, that he did not stand on the easterly track, but'returned to the sidewalk and then proceeded again to cross. All this time the north-bound car which sfruck him was in full progress. The testimony of the plaintiff is so contradictory and confused - that it is impossible to gather a coherent story from it; but the one fact prominently appears that it was, according to his statement, the southbound car at One Hundred and Fifteenth street which prevented his crossing the avenue when he made his first attempt. But it .is apparent, from the testimony of two of plaintiff’s witnesses, who were spectators of the occurrencé, that the plaintiff’s alleged reason for not. at once crossing the avenue has no foundation in fac,t. Both those witnesses testified that there was no south-bound car. One of them (Serra) says he saw the occurrence from-the time the boy stepped off the sidewalk until he was struck by the car; and, further, that “During all the time that the boy was going over from the crosswalk to the track there was no car on the downtown brack. The only car that I saw was the one that was on the uptown track.” The witness Benedetto says: “Idid not see a.car going on the-downtown track, no car was there at all only this one.. The only car was the uptown car.” If these witnesses are correct, the boy could have crossed in safety when he first started. • With- the proof in such a state, the verdict of the jury that the plaintiff was free from contributory negligence'must have been the result-of mere conjecture. The judgment and order appealed from should be reversed-and a new trial ordered, with costs to the appellant to abide event. O'Brien, P. J., Ingraham, Laughlin and Clarke, J,L, concurred. Judgment and order reversed-, new trial ordered, costs to appellant to abide event., Order filed.