Zerr v. Interurban Street Railway Co.

Appellate Terms of the Supreme Court of New York

Zerr v. Interurban Street Railway Co.

88 N.Y.S. 353

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 19, 1904

StatusPublished

This text of 88 N.Y.S. 353 (Zerr v. Interurban Street Railway Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Zerr v. Interurban Street Railway Co., 88 N.Y.S. 353 (N.Y. Ct. App. 1904).

Pincite

Opinion

SCOTT, J.

Upon the plaintiff’s own evidence, the verdict should have been the other way. The collision occurred, not at a street crossing, but between the streets, and the wagon on which plaintiff rode at[354]*354tempted to cross the track diagonally. It is not made quite clear how far away the car was when the cart started to cross the track, the plaintiff varying in his estimate from 4 to 5 feet to 28 or 30. At all events, it was very close, and the car was not running fast. There is no evidence in the case as to the distance within which the motorman could have stopped his car. It may be that, if the motorman had applied his brake the moment the horse and cart started to cross the track, the collision might have been avoided, but the conclusion is irresistible that, unless he did so apply his brake, the car was bound to hit the cart. In other words, when the cart started to cross the track its driver placed it in a position in which it was sure that there would be a collision unless the car was stopped to prevent it. That is to say the driver put himself in a position of danger, relying upon the motorman to avoid it. Between the streets, this was clearly contributory negligence.

The judgment must be reversed and a new trial granted, with costs to appellant to abide the event. All concur.

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SCOTT, J.

Upon the plaintiff’s own evidence, the verdict should have been the other way. The collision occurred, not at a street crossing, but between the streets, and the wagon on which plaintiff rode at[354]*354tempted to cross the track diagonally. It is not made quite clear how far away the car was when the cart started to cross the track, the plaintiff varying in his estimate from 4 to 5 feet to 28 or 30. At all events, it was very close, and the car was not running fast. There is no evidence in the case as to the distance within which the motorman could have stopped his car. It may be that, if the motorman had applied his brake the moment the horse and cart started to cross the track, the collision might have been avoided, but the conclusion is irresistible that, unless he did so apply his brake, the car was bound to hit the cart. In other words, when the cart started to cross the track its driver placed it in a position in which it was sure that there would be a collision unless the car was stopped to prevent it. That is to say the driver put himself in a position of danger, relying upon the motorman to avoid it. Between the streets, this was clearly contributory negligence.

The judgment must be reversed and a new trial granted, with costs to appellant to abide the event. All concur.

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Bluebook (online)

88 N.Y.S. 353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zerr-v-interurban-street-railway-co-nyappterm-1904.