Schleicher v. Interurban Street Railway Co.

91 N.Y.S. 356

Opinion

MacEEAN, J.

Looking when he drove upon the track of the defendant, and again after driving thereon for 200 feet, when he was hit by a car from behind, was not enough for the driver of the plaintiff to do. “It was his duty not only to avoid a collision, but also to cause no needless delay to the defendant; and he might not wait to hear a signal of the approach of a car, but he has needs at intervals to look backward for it.” Hill v. Met. St. Ry. Co., 30 Misc. Rep. 440, 441, 62 N. Y. Supp. 596. The indifferent watch of the helper, riding on the back of the truck, might not be said to meet the duty of the driver. The judgment in favor of the defendant must be affirmed.

Judgment affirmed, with costs.

GILDERSLEEVE, J., concurs in result.

FREEDMAN, P. J.

While I agree with the rule of law laid down by Mr. Justice MacLEAN, as applicable to the question relating" to the contributory negligence of the driver of the plaintiff, if he needlessly drove upon defendant’s track, I prefer to rest my concurrence in the affirmance of the judgment upon the ground that upon the evidence adduced by the defense the trial justice was justified, in concluding that, so far as the defendant was concerned, the collision was an unavoidable accident.

The judgment should be affirmed, with costs.