Ploxin v. Brooklyn Heights Railroad

171 A.D. 925, 159 N.Y.S. 1136

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1915
• Status: Published

Opinion

Judgment and order reversed, with costs, and complaint unanimously dismissed, with costs, upon the ground that the evidence establishes, as matter of law, that decedent was guilty of contributory negligence. The evidence, viewed in the light most favorable to plaintiff’s case, tended to establish that the decedent, having seen the well-lighted car, some thirty feet east of Lawrence street — that is, from one hundred and eighty to two hundred feet east of his position — approaching rapidly upon the further or northern track, started to walk across the street directly in front of the car, where he had a distance of fully twenty-nine feet to go in order to clear the approaching car; that when he came to the space between the two tracks and was about to step upon the further track, and then had about six feet further to go to be fully across, out of the way of the car, the car was only thirty feet away, still coming rapidly with unabated speed; and that, without at all increasing his speed, he continued his walk and was struck as he was passing over the further rail—that is, after he had walked about five feet more; and that there was, throughout his passage from the curb, nothing to obstruct his view or distract his attention from the approaching car. (Zucker v. Whitridge, 205 N. Y. 50; Lofsten v. Brooklyn Heights R. R. Co., 184 id. 148; Peterson v. Ocean Electric R. Co., 161 App. Div. 720; Weaker, v. Brooklyn, Queens County & S. R. R. Co., 136 id. 340.) Jenks, P. J., Carr, Stapleton, Mills and Putnam, JJ., concurred.