Richards v. Sanford

28 N.Y.S. 956, 85 N.Y. Sup. Ct. 133, 60 N.Y. St. Rep. 250

• Court: New York Supreme Court
• Decided: May 14, 1894
• Status: Published

Opinions

BROWN, P. J.

The judgment in this action must be reversed, upon the ground that the evidence does not permit the inference that the driver of the wagon was negligent, or that injuries received by the deceased were caused by the defendant. The accident happened between 5 and 6 o’clock on November 21st, near the corner of Pearl street and Maiden lane, in the city of New York. The express wagon was going north on Pearl street, and the deceased was crossing the street just north of the crossing on the north side of Maiden lane. There was no eyewitness of the accident sworn upon the trial, except the driver of the wagon. He testified as follows:

“I was driving along Pearl street, and I see this man just across the crossing in a diagonal way. He attempted to cross the street, and I shouted at him, and my helper shouted at him, and I hauled up my horse all I possibly could, and he staggered and fell. My horse I just held like that,—steady. He neither tramped on him nor did the wagon or shaft hit him. My horse did not touch him in any way; the shafts did not strike him in any way; the wheels did not touch him in any way. When the man fell, he fell probably from two to three feet ahead of the horse, as near as I can guess. I hauled my horse up, handed the lines to my man, and got down,—the pair of us got down,—and lifted him up. The gentleman started to rim across about ten feet ahead of the crossing. It was north of the crossing, up towards Fulton street. The moment I saw the man attempt to cross, I shouted to him. I held up my horse for all I was worth, and he did stand. I was driving through Pearl street about ten feet, as near as I can guess, from Maiden lane. I was going up town towards Fulton street. That is where I was crossing Maiden lane. I was probably about ten feet, as near as I can guess, over the up-town cross walk. Mr. Richards came from the up-town—the Broadway-side, across down town, towards the ferry. I think that is what he was making for. I see him start from the sidewalk on a run, and, at the time I saw him fall, probably he was six or seven feet across the street; maybe more. I couldn’t just say.”

The only witness called by the plaintiff to prove the accident was Henry Baker. He testified as follows;

“On the evening or in the afternoon of November 21st, 1891,1 was on the southeast corner of Maiden lane and Pearl street, New York City. It was somewhere around between five and half past five o’clock in the evening. I was standing on the corner waiting for a friend to close his store, previous to going to Brooklyn; and while I was waiting I heard a wagon passing the corner at a very fast rate, and I just turned around to see what it was,—what the noise was about,—and didn’t pay no more attention to it until it had crossed Maiden lane; and then I heard a sudden stop, and I saw two or three men running towards the wagon, and I knew it was an accident, and I saw some one lying in front of the horse as I ran over. We helped the man to his feet, and carried him over to the sidewalk. At the time it stopped, this wagon was about five feet from the crossing of Pearl street and Maiden lane. When I looked around, and the wagon had stopped, Mr. Richards was in front of the horse, lying down. The horse was in Pearl street, going up towards Fulton street. When they stopped, they were at the up-town crossing towards Fulton street, about five feet over it. I ran to the place where Mr. Richards was. I got there as soon as some of the other people got there. At the time that he was lying there in front of the horse he spoke. I heard what he said. The driver was down on the street then. He got off the wagon. I saw no marks on him. He was within two feet of the horse when I got there. I know of nothing in the way to obstruct the view of the driver of this wagon to prevent his seeing Mr. Richards before he came onto him. There was a truck going up Maiden lane from Pearl street about three or four minutes previous to the express wagon coming down or going up. It was out of the way before the express wagon got to the down-town side of Maiden lane. The truck that I saw turned from Pearl street into Maiden lane. It was going south, and turned the corner towards Broadway. Right after that truck passed, this express wagon came down. I guess, about the same time the truck went into Maiden lane, the express wagon came down.”

It will thus be seen that there was nothing to obstruct the view of the driver or the deceased. The deceased could have seen the wagon had he looked before he left the sidewalk. The driver saw the deceased as soon as he stepped into the street, and stopped his horse within two feet of him as he fell. There is absolutely no evidence that the deceased was knocked down by the horse or the wagon, and, without some proof of that fact, the injury received from the fall cannot be attributed to the defendant. If it was received from the fall in the street, defendant is not liable, and it is entirely consistent with all the facts proven that it was so received, and no other cause for it appears. There is nothing to support the conclusion of the jury that the injury was caused by defendant, except guess and speculation.' I think, also, that the evidence shows deceased to have been guilty of contributory negligence. He was not at the street crossing, but above it, and could have seen the wagon if he had looked to the south.

Reference is made to an answer made by witness Baker to a question put to him on rebuttal. The question and answer are as follows:

“Q. Did Mr. Richards say, in the presence and hearing of Mr. Macauley, .at that time, that the horse came on him so quickly that he couldn’t get out of the way? (Objected to as incompetent and as leading. Objection overruled. Exception taken.) The Court: This is admitted solely as impeaching the witness. The Witness: Yes, sir."

This evidence does not aid the plaintiff’s case. It does not show that the horse or wagon struck the deceased, or that the driver was negligent. It is entirely consistent with the fact that deceased slipped on the street in his effort to avoid the wagon, which he had not observed when he started to cross. But the effect of the evidence was limited by the trial court, and we can give it no greater weight than it was permitted to have on the trial. The judgment should be reversed, and there should be a new trial.

DYKMAJST, J., concurs.