Zobel v. City of New York

Appellate Division of the Supreme Court of New York

Zobel v. City of New York

275 A.D.2d 722

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 21, 1949

StatusPublished

This text of 275 A.D.2d 722 (Zobel v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Zobel v. City of New York, 275 A.D.2d 722 (N.Y. Ct. App. 1949).

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Opinion

The plaintiff was guilty of contributory negligence as a matter of law. He voluntarily placed his head in a position of danger and kept it there, without paying attention to the tunnel from which he knew a train would come towards his head. He had control of his head and feet, even though his hearing was affected by the sounds of vomiting. For him a “ proper viewpoint ” was not one of place alone but also of time. Every second he remained, the likelihood of a train arriving increased. He was not a traveler crossing a railroad track who could rely on a look at a proper viewpoint before crossing. He was heedless of ordinary precautions in a place of known danger. (Schrader v. New York, Chicago & St. Louis R. R. Co., 254 N. Y. 148, 151.) He invited the result. (Zurich Gen. Accident & Liability Ins. Co. v. Childs Co., 253 N. Y. 324, 327.) Therefore, although the jury could say the motorman was negligent, plaintiff cannot recover because his own negligence continued along with that of the motorman and contributed to his injuries. (Hernandez v. Brooklyn & Queens Tr. Corp., 284 N. Y. 535; Panarese V. Union Ry. Co., 261 N. Y. 233.) Wenzel and MacCrate, JJ., concur; Sneed, J., concurs in result; Nolan, P. J., and Carswell, J., dissent and vote to affirm. [See post, p. 782.]

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The plaintiff was guilty of contributory negligence as a matter of law. He voluntarily placed his head in a position of danger and kept it there, without paying attention to the tunnel from which he knew a train would come towards his head. He had control of his head and feet, even though his hearing was affected by the sounds of vomiting. For him a “ proper viewpoint ” was not one of place alone but also of time. Every second he remained, the likelihood of a train arriving increased. He was not a traveler crossing a railroad track who could rely on a look at a proper viewpoint before crossing. He was heedless of ordinary precautions in a place of known danger. (Schrader v. New York, Chicago & St. Louis R. R. Co., 254 N. Y. 148, 151.) He invited the result. (Zurich Gen. Accident & Liability Ins. Co. v. Childs Co., 253 N. Y. 324, 327.) Therefore, although the jury could say the motorman was negligent, plaintiff cannot recover because his own negligence continued along with that of the motorman and contributed to his injuries. (Hernandez v. Brooklyn & Queens Tr. Corp., 284 N. Y. 535; Panarese V. Union Ry. Co., 261 N. Y. 233.) Wenzel and MacCrate, JJ., concur; Sneed, J., concurs in result; Nolan, P. J., and Carswell, J., dissent and vote to affirm. [See post, p. 782.]

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275 A.D.2d 722, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zobel-v-city-of-new-york-nyappdiv-1949.

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