Belton v. . Baxter

Allen, J. That there was evidence of negligence on the part of the defendants’ servant to carry the case to the jury cannot, upon the record before us, be controverted, and the court properly refused the nonsuit asked for, on the ground alleged that there' was no evidence of negligence in the driving of defendant’s vehicle. The only question is, whether the evidence so conclusively established negligence on the part of the plaintiff, contributing to the injury, as to authorize the court to take the case from the jury and dismiss the complaint for that reason. Upon a former appeal in this action, it was held that the plaintiff should have been nonsuited upon his own showing, *414 the learned commissioners of appeals holding that, under the circumstances then appearing in evidence, the plaintiff was culpably negligent in attempting to cross the street upon mere calculations of the chances of injury. (Belton v. Baxter, 54 N. Y., 245.) If the evidence upon the second trial had been the same as upon the first, the plaintiff would have been concluded by this adjudication. The question recurring in the same action, between the same parties, would have been res adjudicata in this, and in all other courts, by the judgment of the court of last resort. The main fact relied upon by the court, as establishing, beyond question, a want of proper care and prudence on the part of the plaintiff, was that he undertook to pass in front of the street car and the defendant’s cart, both passing up Second avenue at an unusual rate of speed, knowing that the cart had turned off of the railroad track to the east, with a view to pass the car, and was then in the act of passing it. It may be conceded that this was a legitimate and necessary inference from the testimony of the plaintiff himself upon the first trial. After having stated that the cart was out of his sight when the car was approaching the crossing of Fourth street, in answer to the question: “ It had passed upon the other side of -the car ? ” the plaintiff answered: “ It must have done so; I can’t tell.” To the question : “ If the cart was going a little .faster than the car?” he answered-: “Yes.” The next question was: “ Then it passed behind, on the other side of the car, as they came near Fourth street?” and to this the plaintiff answered: “Yes, sir.” The plaintiff also testified that he made his calculations on ggtting across in front -of ■ the car before the.cart would come up. This is the substance of the evidence on the first trial, which was regarded as conclusively showing negligence on the part of the plaintiff, based upon his supposed knowledge that the cart had turned to the right of the ear and was passing it. On the second trial this testimony is explained. The plaintiff says that he watched the cart all the' time he could, until he *415 came very near the crossing of the track, when he lost sight of it, as he might well have done, although it remained on the railroad track. The line of vision may well have been such that he could not see the cart on the same line with the car, he standing or being near the track, and in front of the car. He said he did not think it possible then, as he lost sight of the cart, that it could get' around the car in that short space of time. He says, on cross-examination, that he was pretty near the car, so that he. just lost sight of the cart then, and he supposed that the cart turned off the track when the car slackened. This must have been so, or it could not have come in collision with the plaintiff, and the answer was proper whether he had any other knowledge of the fact or not. He says, expressly, in answer to the interrogations of the defendants’ counsel, that he did not know where the cart ' was when he lost sight of it, and did not suppose it would turn out to the right and catch him up. This evidence, not in the case upon the former appeal, takes from the statements of the plaintiff much of their point and significance, as these statements were read and interpreted by the court. Upon the whole evidence before us, it is riot conclusively shown, or necessarily to be inferred that the plaintiff knew, or had reason to believe at the time of his attempt to cross the avenue, that the cart, instead of following the car, had turned off, and was passing it. If such was the fact, it is not sworn to by the plaintiff, neither is it a necessary inference, •as was held to be the case upon the evidence before the court on the former appeal. If the fact is to be inferred from the ‘ evidence, it must be drawn by a jury, and not by the court. The court can only take cases from a jury, by nonsuiting the plaintiff, when the facts are undisputed. If the evidence is conflicting, is capable of different interpretations, or the inferences to be drawn from it are doubtful, it is the province of the jury to pass upon it. So, too, upon the evidence before us, differing as it does from the case as_ reported 54 New York (supra), whether it was prudent or imprudent for *416 the plaintiff to attempt to cross the avenue, under all the circumstances, will be for the jury to determine. The result shows that the plaintiff was correct in his calculations that he could pass in front of the car safely, and whether he was also bound, as a prudent man, to anticipate the coming up of the cart at an unusual speed, and guard against it, the court cannot, as a question of law, determine. It is peculiarly a question of fact for the jury, and not one of law for the court, under the circumstances of this case. The evidence is so essentially different from that upon the former trial, that it is taken out of the former decision, and the alleged negligence of the plaintiff is not' so clearly and conclusively established, as to authorize the withdrawal of the case from the jury. It was error to nonsuit the plaintiff on that ground. The judgment must be reversed, and a new trial granted. All concur. Judgment reversed.