McGuire v. . New York Railways Co.

McLaughlin, J. This action was brought to recover damages for personal injuries alleged to have been sustained by reason of defendant’s negligence. The plaintiff had a verdict, upon which judgment was entered, from which defendant appealed to the Appellate Division, where the same was affirmed (two of the justices dissenting) and defendant then appealed to" this court. There is little or no dispute as to the material facts involved. The plaintiff, fifty-eight years of age, was a plumber and steamfitter by trade. About nine-thirty p. m. on March 21, 1915, while crossing defendant’s railway tracks from east to west, at One Hundred and Twenty-third street and Lenox avenue in the city of New York, he was struck on the south crossing at the intersection of such streets, by one of its south-bound cars and seriously injured. The recovery has been *26 sustained upon the ground that the injuries were caused solely by defendant’s negligence and that plaintiff himself was free from negligence. Is the evidence susceptible of this construction? That is the question to be determined. Lenox avenue, at the place where the accident occurred, extends practically in a northerly .and southerly direction and is about eighty feet from curb to curb. One Hundred and Twenty-third street runs at right angles to it and is about twenty-nine feet eight inches from curb to curb. The defendant has double tracks in about the middle of Lenox avenue. The- north-bound cars run on the east and the south-bound cars on the west track. From the east curb of Lenox avenue to the east rail of the northbound track is thirty-two feet. The distance between the rails of each of the tracks is, approximately, five feet. Between the north and south-bound track is a space of about five feet in width. The distance from the westerly rail of the south-bound track to the westerly curb of Lenox avenue is thirty-one feet eight inches. Plaintiff testified that immediately preceding the accident he left his residence to go to a nearby liquor store to procure a pint can of beer to drink with his supper; that after procuring the beer, he walked down Lenox avenue on the easterly side, crossed One Hundred and Twenty-third street and then started to cross the avenue on the southerly crosswalk; that before starting to cross he looked up and down the avenue; that he saw nothing to the south, but on looking north he saw, between One Hundred and Twenty-fourth and One Hundred and Twenty-fifth streets, a car approaching rapidly; that it was well lighted and there was nothing to obstruct his vision, nor distract his attention; that after seeing the car approaching rapidly, he started to cross Lenox avenue; that there was at that time a north-bound car which had stopped at the crossing, but as he reached it, this car moved along and he proceeded on his way; that he crossed the north-bound track and as he was on the space between *27 the north and south-bound tracks, and about to step upon the latter, he saw the car which he had first seen between One Hundred and Twenty-fourth and One Hundred and Twenty-fifth streets still approaching rapidly; that it was then at about the northerly crosswalk of One Hundred and Twenty-third street, or nearly twenty-nine feet away; that he thought he could get across without being struck; that without increasing his speed, he proceeded, and as he was about to clear the south-bound track was struck and seriously injured. Considering these facts in the most favorable light to the plaintiff, I am of the opinion he was, as matter of law, guilty of contributory negligence. He, of course, was as much obligated to look out for his own safety as was the motorman. It may very well be he thought he could get across the tracks before the car reached him, and that the motorman also believed he would do so, but if so, each made a mistake. The evidence which establishes the negligence of one equally establishes the negligence of the other, and to permit a jury, under such circumstances, to say that the plaintiff’s injuries were caused solely by the negligence of the defendant is to predicate a verdict upon pure speculation. Authorities in negligence cases serve little purpose, since each case must be determined by its own peculiar facts. However, the following authorities would seem to indicate that upon the facts stated the view above expressed is correct: Woodward v. New York Railways Co. (164 App. Div. 658; affd., 221 N. Y. 538); Ploxin v. Brooklyn Heights R. R. Co. (171 App. Div. 925; affd., 220 N. Y. 609); Zucker v. Whitridge (205 N. Y. 50); Weiss v. Metropolitan St. Ry. Co. (33 App. Div. 221; affd., 165 N. Y. 665). The facts in Ploxin v. Brooklyn Heights R. R. Co. (supra) were quite similar to the facts in this case. There, the deceased saw a car about two hundred feet away, approaching rapidly. He started to cross the street in *28 front of it and in order to clear it had to travel twenty-nine feet. When he reached the space between the two tracks he had about six feet to go. The car then was about thirty feet from him, still approaching rapidly. Without increasing his own speed, he continued his walk, and was struck just as he was stepping over the furthest rail. It was held that deceased was, as matter of law, guilty of contributory negligence. Knapp v. Barrett (216 N. Y. 226) and other authorities cited by the respondent are not applicable, or are clearly distinguishable. The judgment appealed from, therefore, should be reversed, with costs in all courts, and the complaint dismissed.