Tupper v. Metropolitan Street Railway Co.

74 N.Y.S. 868

• Court: Appellate Terms of the Supreme Court of New York
• Decided: October 15, 1901
• Status: Published

Opinion

SCOTT, J.

This is an action for damages for the alleged negligence of defendant. The complaint was dismissed at the close of the plaintiff’s case. He is therefore entitled to the benefit of all the facts and inferences which may be drawn from the evidence most favorable to his contention. Eastland v. Clarke, 165 N. Y. 425, 59 N. E. 202. The burden rested upon the plaintiff to show that the defendant’s servants were guilty of some negligence contributing to the accident, .and that he was free from such negligence. If the evidence showed conclusively either that the defendant was wholly free from negligence, or that the plaintiff himself was guilty of negligence, the nonsuit was properly directed; otherwise not. The plaintiff, about 7 o’clock in the evening on October 22, 1898, was slowly riding his bicycle through 114th street from east to west. As he approached Manhattan avenue he saw one of the defendant’s cars going south, and another going north; the latter stopping at the northerly side of 114th street. As he came towards the track he looked up and down to see if there was any car approaching, and as he approached the corner he looked toward the north to see if any car was coming down the avenue, and saw none. He started to cross the street behind the north-bound car, and when he got between the two tracks he saw a car coming rapidly downtown. This car struck him and inflicted the injuries for which he sued. The car was going at about 10 miles an hour, and the bell was not rung. The failure to ring the bell constituted, under the circumstances, some evidence upon which the jury might have found that the defendant was negligent. Schulman v. Railroad Co., 15 Misc. Rep. 32, 36 N. Y. Supp. 439; Schwarzbaum v. Railroad Co., 54 App. Div. 164, 66 N. Y. Supp. 367; Dunican v. Railway Co., 39 App. Div. 497, 57 N. Y. Supp. 326. The defendant’s car had no paramount right to the use of the street at the crossing; and, while there may be no statutory duty resting upon the defendant’s servants to ring a bell when approaching such a crossing, a jury might well say that proper care in the management of the car required that such a precaution! be taken where the car was running at a high rate of speed, and where the north-bound car, standing at the upper corner, served to cut off the view of persons seeking to cross the street from east to west. A jury might equally have found the plaintiff free from negligence. He had just seen one car go south, and was not called upon to expect another to follow it immediately. He took the precaution to look up and down the avenue for approaching cars, and saw none, and, owing to the failure to ring the bell, did not hear the car which afterwards struck him. A finding by the jury that he had exercised reasonable care could not, on this evidence, be disturbed.

Judgment reversed, and new trial granted, with costs to appellant to abide event. All concur.