Opinion
November, 1897.
Daniel W. Patterson, Ambrose F. McCabe, Theodore H. Lord and Henry A. Robinson, for appellant.
Perkins Butler, for respondents.
The plaintiffs have recovered a verdict of $202.10, for injuries to a horse and truck sustained in a collision with the defendant's cable car, on Lexington avenue, at the intersection of One Hundred and Twenty-sixth street, on the evening of December 17, 1896. The plaintiffs' truck, drawn by two horses, in charge of their driver, proceeded up Lexington avenue on the defendant's up-town track, behind a north-bound car, at a distance from the latter, variously testified to be from five feet to a wagon's length. The driver intended to proceed to plaintiffs' stable on One Hundred and Twenty-sixth street, and when he arrived at that street, he turned his team to the left so as to cross the down-town track and proceed westerly along One Hundred and Twenty-sixth street. In crossing that track the hub of his forward wheel was struck by a south-bound car of defendant. The appellant contends that the negligence of the driver contributed to the injury as the circumstances establish that at the time he proceeded to cross the track the approaching car was so near as to render a collision inevitable.
The witnesses disagree as to the distance of the south-bound car from the place of the accident at the time plaintiffs' driver turned his horses across the track; but in as much as the front wheel of the truck was struck by the car, it is evident that the distance was not very great for the truck was empty, and the time required to turn the team from the north track across the south track could not have occupied any considerable time, and the fair inference from that fact alone is that if the driver had looked to see if any car was approaching he would have perceived that he had no time to cross and avoid a collision. He states that he looked up the avenue, "looked to see where the horses were going," and saw no car, and the first he knew of a car coming was when it struck his truck and knocked him off.
That he must have seen the car coming if he had looked before he attempted to cross, and that it was so near as to lead a prudent driver to conclude that it was unsafe to make the attempt is clear from the testimony of one of plaintiffs' witnesses, a bystander. This witness, whose name was Heckel, and who was one of several persons about the street corner at the time, was standing on the down-town corner. When asked when his attention was first attracted to the accident, he answered, "when the fellows saw the wagon coming over the track some one called out, here comes a smashup." If the bystanders could perceive the imminence of the danger it must have been equally apparent to the driver had he looked.
That the driver did not see the approaching car can only be accounted for on the theory that he neglected to look up the track. He was asked on cross-examination if the car ahead of him prevented his seeing very far up the avenue, and he said he thought it did. His own testimony was that it was a wagon length ahead of him when he attempted to turn. If it in any way obstructed his view of a car approaching on the other track he was bound in the exercise of ordinary diligence to wait until the obstruction was removed. Heaney v. L.I.R.R. Co., 112 N.Y. 122. To look when one is in such a situation that he cannot see is not enough to relieve him of the imputation of contributory negligence. Fogassi v. N.Y.C. H.R.R.R. Co., 19 Misc. 108; affirmed, 17 A.D. 286. In this case the driver of the plaintiffs' truck not being able to see an approaching car by reason probably of the obstruction caused by the car ahead of him or not looking to see if a car was approaching turned his horses directly across the track at his left and proceeded to cross without further precaution. The sides of his wagon were covered by curtains which prevented his seeing sideways unless, as he testifies, he stooped down to look under them and this he did not do, so that having no assurance in the first instance that it was safe to cross he nevertheless made the attempt without exercising any further care.
One of the plaintiffs' witnesses, Hepburn, testifies that when the wagon turned into One Hundred and Twenty-sixth street the approaching car was just coming to the north crossing — was right by it when the driver started to go diagonally across the track, and that when he first saw the car and the truck they were twenty-five feet apart. This was the only one of plaintiffs' witnesses who saw the car before the collision, and his testimony, taken in connection with the proof that the speed of the car was eight to ten miles an hour, shows that to cross the track with horses at a walk, as the driver testifies his were going, was to invite disaster.
The evidence established by a preponderance of proof the contributory negligence of plaintiffs' driver and the judgment must be reversed. Hamilton v. Third Avenue R.R. Co., 6 Misc. 382.
Judgment reversed and new trial ordered, with costs to appellant to abide the event.
McADAM and BISCHOFF, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide the event.