Wirth v. . Burns Bros.

Andrews, J. Walking easterly on the north side of Seventeenth street about half-past two of a clear afternoon, the plaintiff reached Second avenue. Wishing to cross he stood at the curb and looked to the north from which direction vehicles might be expected to come, and to the south. From the north an electric car and an automobile were approaching. Otherwise the avenue was clear. He waited until the automobile had passed and until the car was passing. Then looking again and seeing nothing he started to cross the avenue. He had gone about ten feet at a moderate gait when he was struck and injured by the left rear wheel of a coal truck backing from the south. At the time it struck him this truck was headed north and south. The pavement was asphalt. The plaintiff heard nothing and no warning signal was given. Where the truck came from, how fast it was moving, why it was backing northerly does not appear. Had a nonsuit not been granted a more full description of the accident might have been before us, but as the case stands the dismissal of the complaint was not justified. Backing over a crossing without warning, moving in a direction contrary to the general traffic, striking a pedestrian who was walking at an ordinary speed ten feet from the curb, in clear daylight, at least permits an inference *150 of negligence on the part of the driver. As for the plaintiff, unless his story is incredible, we cannot say, as a matter of law, that he was guilty of contributory negligence. ■ Reaching the curb he looked both ways. He waited for vehicles coming from the north to pass. The avenue was then clear. He walked forward at an ordinary speed. He heard no sound. He was struck on the right side by a truck coming between him and the curb behind him. His theory is that it must necessarily have backed out of Seventeenth street around the comer and up the avenue so that it might straighten out to proceed southerly on the right of the roadway. Had it backed up the avenue he would have seen it.. He does not claim that he in fact noticed it as he came along Seventeenth street, but then his attention would naturally be fixed on the crossing in front. He -might reasonably expect interruption only from the north. A vehicle coming out of Seventeenth street behind him would not endanger him if it complied with the ordinance of the city (Ch. 24, art. 2, sec. 11), of which we may take judicial notice. (L. 1917, ch. 382.) On the other hand, it is said that the plaintiff must be charged with seeing what he should have seen. There is no proof as to the direction in which the tmck came and it is physically impossible that when the plaintiff started to cross it was so far away that the threatened danger was not apparent. It must have been south of the crossing. It must have been close by. It must have, been in motion. We do not think any of these conclusions inevitable." If the plaintiff were walking at three miles an hour it would take over two seconds to go from the curb to the point where the plaintiff was stmck. In these two seconds a body moving at ten miles an hour would pass over some thirty feet; if at fifteen miles an hour, some forty-four feet. There is nothing impossible in his story," therefore, that he saw nothing moving toward him on the avenue from the south. *151 The judgments appealed from should be reversed and a new trial granted, with costs to abide the event.