Tully v. New York City Railway Co.

127 A.D. 688, 111 N.Y.S. 919, 1908 N.Y. App. Div. LEXIS 4079

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 8, 1908
• Status: Published

Opinions

McLaughlin, J.:

Action to recover damages for personal injuries alleged to have been caused by defendant’s negligence. About eight o’clock on tbe evening of .the 2d of April, 1906, the plaintiff, then about sixty-eight years of age, while. crossing the Bowery on tbe downtown crossing of Bleecker street from west to east, was struck by one of the defendant’s cars and injured. She testified that before attempting to cross the street she looked up and down and saw a car about two blocks away, and then proceeded to cross; that'as she was near the last rail of the fourth track she was struck ; that she -did not hear a bell sounded and the car which struck her came very fast; that she did not know what car it was that hit her because, to use her own language, “ I wasn’t looking at the car. I don’t know which car it was hit me.”

This is the only evidence offered tending to show defendant’s negligence, except that the witness Kepko, who ivas about 100 feet from where the accident occurred, testified that he saw the plaintiff crossing the street but'did not see her struck by the car; that when he saw her “ she was walking very slowly, very feebly,” and he did hot hear any gong sounded. And the witness Scherer, who testified that he saw the plaintiff after the accident and “ assisted her to the hallway; ” that he could not say he heard a gong sounded but there were “ gongs sounding all' day along the Bowery.’

At the conclusion of plaintiff’s case the defendant moved to' dismiss the complaint upon the ground that plaintiff had failed to establish a cause of action against the defendant and had failed to show her own freedom from negligence. The motion was denied and an exception taken.

In denying this motion I think the court erred. The plaintiff, while crossing the street, was as much obligated to look out for her own safety as was the motorman. She saw, according to her own testimony, a car approaching (whether it was the one which subsequently struck her does not appear), and having noticed this car she could not step upon the track without having first ascertained whether it was safe to do so or not. (Jackson v. Union R. Co., 77 App. Div. 161.) There is absolutely no evidence which shows, or tends to show, how far away the car which struck her was when she stepped upon the track, or how many feet she was from the track on which she stepped when she looked and saw a car, or how much time elapsed after looking before the accident occurred. The evidence, therefore, did not justify a finding that the defendant was negligent or the plaintiff free from negligence. (Lofsten v. Brooklyn Heights R. R. Co., 184 N. Y. 148; Cranch v. Brooklyn Heights R. R. Co., 186 id. 310; Dorienza v. New York City R. Co., 112 App. Div. 913; affd., 187 N. Y. 567; Trauber v. Third Avenue R. R. Co., 90 App. Div. 606; affd., 181 N. Y. 541; Jackson v. Union R. Co., supra.)

The fact that the plaintiff was struck by a car as she was leaving the track did not, of itself, justify a finding that the defendant was negligent or that she was free from negligence. (Kappus v. Metropolitan St. R. Co., 82 App. Div. 13.) The truth is the plaintiff, according to her testimony, paid no attention to her own safety ■ after she left the corner, and, therefore, her conduct does not susf tain a legal inference that she exercised the degree of care which the law imposed upon her, and a finding of the jury to the contrary is based-solely-upon speculation and nothing else.

I am also of the opinion that the judgment must be reversed -because the court refused to charge the following request: “I ask Your Honor to charge that the plaintiff was required-to look after she left the curb before she tried to cross the track.” It is difficult to imagine why this request was refused. . Plaintiff, as already suggested, was as much bound.to look out for herself as the motorman was. She could,not, having■ observed a car approaching, heedlessly cross the -street and pay no -attention to it, because the motorman had as much right' to assume that she would keep out of the way óf the car as she had to assume that the motorman would so control the car that it would not injure her*

The court also erred in refusing to charge a request to the effect that there was no evidence that the plaintiff was of infirm mind or had any physical impairment prior to the accident. There was no evidence to show that the plaintiff, prior to the -accident, was of infirm mind or had any physical impairment whatever.

The judgment and order appealed from, therefore, must be* reversed and a new trial ordered, with costs to appellant to abide event.-

Ingbaham, Houghton and Scott, JJ., concurred; Laughlin, J., dissented.