Westerman v. Metropolitan Street Railway Co.

84 N.Y.S. 501

Opinion

BISCHOFF, J.

The jury could properly find from the evidence that the car had stopped at a point half a block away when the wagon approached the track in the course of an attempt to cross. The path taken was diagonal; hence the inference that the car overtook the wagon is permissible, and there is no improbability in the account given by plaintiff’s witness that the car proceeded 85 feet while the wagon was thus making a diagonal crossing. Concededly, negligence of the driver of the wagon was not to be imputed to the plaintiff, and his failure to look for the car was not necessarily an act of negligence. The place was not a place of obvious danger, as at a railway crossing, and the position of the car was such that, had he looked, danger in the attempt to cross was not apparent, according to acceptable evidence. Therefore the jury could find, as a matter of reasonable inference, that there was no contributory negligence. Lane v. Brooklyn Heights R. R. Co., 85 App. Div. 89, 82 N. Y. Supp. 1057.

Judgment affirmed, with costs. All concur