Mathers v. Interurban Street Railway Co.

112 A.D. 397, 98 N.Y.S. 433, 1906 N.Y. App. Div. LEXIS 691

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 20, 1906
• Status: Published

Opinion

Gaynor, J.:

The jury could have found from the evidence that the plaintiff was crossing Third avenue, Manhattan, at the lower crossing of Thirtieth street from east to. west at an ordinary walk; that as he left the curb he looked up and down Third-avenue, and saw'a car up near Thirty-first street coming down and • another down at Twenty-ninth street coming up (i. e., on the east track) ; that another car going uptown was at the time-passing the crossing he was on; that no other cars were between Twenty-ninth and Thirty-first streets; that h.e walked across in the rear of. the said uptown car that was passing at the time, and as he came out from behind it was hit by the downtown car. ’ '

The plaintiff was nonsuited for not looking uptown again before going on the downtown track. This was error. When he looked ' on leaving the curb the downtown car -was that far away that it was atdeast a. question of fact whether it was contributory negligence not to look again.' I do- not see it would be of any use to. cite decisions.

The judgment is reversed.

Hirschberg, P, J., Hooker, Rich and Miller, JJ., concurred.

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