Malizia v. Brooklyn Heights Railroad

127 A.D. 202, 110 N.Y.S. 1003, 1908 N.Y. App. Div. LEXIS 1929

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 5, 1908
• Status: Published

Opinion

Gaynor, J.:

The' plaintiff and four others were at work repairing the tracks of the Long Island Railroad (a steam railroad), at the point where they are crossed by the tracks of the defendant (an electric street railway). They had to be iipon the track of the defendant, and by it, to do the work. As the plaintiff was bent down putting a plank in position by the rails a car of the defendant came up behind and hit him. He was right by the defendant’s track. Before he bent down he saw the defendant’s car coming about 150 fee't away. He was non-suited for contributory negligence. That was for the¡ jury. Men often have to work on car tracks, and with cars passing at irequent intervals they have to do the best they can to avoid danger and yet • do the work. ' The plaintiff may well have supposed that with the car so far away he could safely stay awhile yet, especially as the car was required by law to stop before crossing the tracks of the steam road.

The judgment should be reversed.

Woodward, Jerks, Bich and Miller, JJ., concurred.

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