Plunkett v. Brooklyn Heights Railroad

129 A.D. 572, 114 N.Y.S. 276, 1908 N.Y. App. Div. LEXIS 1362

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1908
• Status: Published

Opinions

Gaynor, J.:

The case seems to have been one for the jury. The plaintiff, an aged woman of 65, was crossing Uostrand avenue on Lincoln Road, which is a rural district. The car that hit her was going south on Hostrand avenue. She crossed from the east, crossed the first track, and had all but cleared the next one, on which the car was running, when she was hit. She was crossing by the far crossing, so that the car came across Lincoln Road before hitting her. There was ample testimony that the car was going at great speed over the crossing. The motorman even says it was going 7 or 8 miles an hour, which was a high speeed for a crossing, if not even between blocks, and the jury could well have found that it was going much faster. The only passengers in the car, three, say it ran a block after hitting the plaintiff before it was brought to a standstill, although the motorman at once set about stopping it, and that the trolley pole was turned, and the car ran back to the place where the plaintiff was hit.

Whether the plaintiff was negligent cannot be said as matter of law. She says she looked when at the curb, and again before getting to the track on which she was hit, to see if any car was coming, but saw none. It is said that if she had looked she must have seen the car, and that as she did not see it, it is proved that she did not look, as in the Dolfini case. But that does not follow in this case. The dullness of the faculties of the aged have to be considered. It was also in the night time and at a place not much lighted. There was a headlight on the car, but there was a sewer being dug through Lincoln Road across Hostrand avenue, the earth from which was piled up á feet high from the side from which she came, from the curb nearly up to the car tracks, and may well have interfered with her seeing the headlight, for she had to walk alongside of it, and over a crossing which was littered up also. Her situation was distracting. The car was a combination car, so-called, namely, enclosed, but without glass windows, but only leather shades, which are pulled down by the passengers or conductor in stormy or chilly weather, and there is evidence that some of them, at least, were down, it being a chilly night in October; so that there may not have been much light visible from the car, except from the headlight, And if the car was going at the high speed the jury could have found, she may not have seen it only because she did not look far enough to see a car coming to a crossing at such a speed, and she was not obliged to look further than a reasonable distance, as people at crossings ordinarily do.

The judgment should be affirmed.

Woodward, Jenks and Miller, JJ., concurred; Hooker, J., read for reversal.