Opinion
December Term, 1901.
Roger Foster, for the appellant.
Theodore H. Lord, for the respondent.
On the 4th day of November, 1897, at about four o'clock in the afternoon, plaintiff was seated upon a single coal wagon, driving easterly across Lexington avenue, at One Hundred and Twenty-fourth street, and a north-bound car of the defendant struck the left wheel of the wagon, precipitating him to the ground and inflicting certain injuries, to recover damages for which this action was brought. Plaintiff's counsel duly excepted to the direction of a verdict and requested to be permitted to go to the jury upon all the questions in the case. The question presented by the appeal is whether the evidence required the submission of the case to the jury.
Upon the trial plaintiff testified that he was employed by Mr. Hobble as a driver; that he had had twelve years' experience as a driver at the time in question; that he started with a ton of coal from One Hundred and Twenty-sixth street and Park avenue, drove over One Hundred and Twenty-sixth street to Lexington avenue, turned into that avenue and drove down on the westerly side, intending to cross to the easterly side of One Hundred and Twenty-fourth street, his destination being premises located between One Hundred and Twenty-third and One Hundred and Twenty-fourth streets. Other evidence was given by or on behalf of the plaintiff tending to show that the horse attached to the coal wagon was walking and was not turned across the street until the vehicle reached about the middle of One Hundred and Twenty-fourth street, and at that time the car which collided with the vehicle was about in the middle of the block between One Hundred and Twenty-third and One Hundred and Twenty-fourth streets; that the vehicle turned, not upon a slant, but practically straight toward the track to make the crossing; that after seeing that the car was about half a block away and proceeding to guide his horse across the track, the driver did not watch the further approach of the car, but kept his attention upon the horse and the street in front; that the car was coming very rapidly and there was nothing to obstruct the view of the horse and wagon by the motorman; that there was ample time for the vehicle to clear the tracks if the car had not approached with great rapidity; that the grade at that point was practically level and the condition of the weather was such that the rails were not slippery, and that the car at the speed at which it was going could have been stopped within ten or fifteen feet.
This evidence, although contradicted by the evidence introduced on the part of the defendant, presented a question of fact for the consideration of the jury, both upon the question as to whether plaintiff was free from contributory negligence and as to whether defendant was guilty of negligence.
If the testimony introduced on the part of the plaintiff correctly stated the facts, he had a legal right to cross the tracks at that time, and the jury would have been justified in finding that in so doing he exercised proper care and that the motorman was negligent in not having his car under control so as to avoid running the plaintiff down. These propositions are too clear to require further discussion. ( Hergert v. Union Railway Company, 25 App. Div. 218; Lawson v. Metropolitan St. Ry. Co., 40 id. 307; Kennedy v. Third Ave. R.R. Co., 31 id. 30; Mowbray v. Brooklyn Heights R.R. Co., 59 id. 239; Blate v. Third Ave. R.R. Co., 44 id. 163; Weidinger v. Third Ave. R.R. Co., 40 id. 197.)
The issues of fact thus presented could not be taken from the jury on the theory that a verdict for the plaintiff should be set aside as against the weight of evidence. In a proper case the court may intervene and grant a new trial after the rendition of the verdict upon the ground that the verdict is against the weight of evidence, but this does not justify the taking of the case from the jury in advance. ( McDonald v. Metropolitan St. Ry. Co., 167 N.Y. 66.)
It follows that the judgment must be reversed and a new trial granted, with costs to appellant to abide the event.
PATTERSON, INGRAHAM and HATCH, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.