Vought v. New York City Railway Co.

92 N.Y.S. 235

Opinions

SCOTT, J.

I am unable to find any evidence in the case showing negligence on the part of the defendant. Certainly negligence cannot be attributed to the motorman of the south-bound car, and there is nothing to show whether the motorman of the uptown car was negligent in starting his car or not. For all that appears in the case, the plaintiff, if he had proceeded across the street, would have safely cleared the car. It is undoubtedly true that, if the evidence showed that, owing to the negligent act of the motorman of the uptown car in starting prematurely, so as to place plaintiff in imminent peril, the latter would not be charged with contributory negligence merely because he jumped back, and thereby reached a place of danger from the down car. The difficulty with the plaintiff’s case, however, is that it is not shown that by any act of the motorman of the uptown car plaintiff was in fact put in peril. For all that appears, it was entirely unnecessary for him to have stepped back at all. The motion to dismiss the complaint should have been granted, as the evidence stood.

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

McCALL, J., concurs.