Schulman v. Linch

133 N.Y.S. 963

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 8, 1912
• Status: Published

Opinion

SEABURY, J.

This action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant. The plaintiff was a driver of a milk wagon. He testified that he was driving slowly, and when one foot away from the track he saw the defendant’s car approaching; that at that time the car was ten feet away from him. Notwithstanding this fact, he attempted to cross the track, and when halfway over his wagon was struck by the car.

We think that there is only one inference which can be drawn from this evidence, and that is that the plaintiff negligently drove on the track in front of a moving car, which was at that time only a few feet away from him. There is no evidence that, when the plaintiff first saw the car, it had slowed down, or that any act was done by the motorman which could have been construed into an invitation to the plaintiff to cross the track.' Under these circumstances, we think that the complaint should have been dismissed at the close of the plaintiff’s case. The evidence offered by the defendant showed that the car was only five feet away when the plaintiff drove on the track; that the motorman rang the bell, used the reverse on the car, and shouted a warning to the plaintiff before he got upon the track.

Judgment reversed, and complaint dismissed, with costs to appellant. All concur.