Opinion
July 30, 1915.
S.B. Olney [ D.A. Marsh and George D. Yeomans with him on the brief], for the appellant.
Frederick N. Van Zandt, for the respondent.
We think that the plaintiff did not sustain the burden as to his contributory negligence. He was a man fifty-seven years of age, who was struck by the defendant's street surface railway car during an attempt to cross the tracks in a city street. The plaintiff's testimony is that as he stood on the curb he saw the car distant 100 feet and approaching very fast. The first rail of the tracks was 21 feet from that curb. The plaintiff stepped down to attempt the crossing. When he reached that first rail he turned to see the car, then about 35 feet away. There had been no change in its speed. He had walked at the rate of 3 miles an hour, and as he had one foot on the second rail of the track he heard the ring of the gong and turned to see the car very near — and then he was struck by the fender. He estimated that the car was about 14 feet distant when he had reached the first rail, but one of his witnesses estimates that distance at 24 feet. The plaintiff describes the speed of the car at that time as like unto that of a fire engine galloping to a fire. In that situation he essayed to cross over in front of the car, and yet he did not attempt to quicken his pace. There is no apparent reason for his venture. For aught that appears he could have halted and have drawn back. There was neither vehicle nor pedestrian to interfere with him nor to confuse him. He had no reason to suppose that the car would come to a standstill before it reached his locality. One bit of proof elicited from the plaintiff is significant even in its incompleteness. "I intended to cross and I thought the motorman —." He had no right to act upon his thought of what the motorman would do, but only upon the assumption that the motorman would have his car under reasonable control with respect to the plaintiff, who would on his part exercise relative care. ( Thompson v. Metropolitan Street R. Co., 89 App. Div. 10.) We think the plaintiff took the chance beyond the warrant of due care, and that under the principle enunciated in Greene v. Metropolitan St. R. Co. ( 100 App. Div. 303) and Zucker v. Whitridge ( 205 N.Y. 50) and cases cited therein the judgment and order of the County Court of Queens county must be reversed and a new trial must be ordered, costs to abide the event.
JENKS, P.J., THOMAS, STAPLETON and RICH, JJ., concurred.
The parties hereto having stipulated in open court that this case may be disposed of by a court of four, the decision is as follows: Judgment and order of the County Court of Queens county reversed and a new trial ordered, costs to abide the event.