Mastin v. . City of New York

Willard Bartlett, J. Unless the rule which requires affirmative proof of the absence of contributory negligence on the part of the plaintiff is to be ignored in actions to recover damages for personal injuries it seems to me that this judgment must be reversed. As I view the evidence, not only was there a failure to furnish affirmative proof that the plaintiff was not himself at fault, as in the case of Whalen v. Citizens' Gas Light Co. (151 N. Y. 70), but the plaintiff’s own testimony demonstrates his contributory negligence, as in the case of Dolfini v. Erie R. R. Co. (178 N. Y. 1). The plaintiff, who was a photographer, was injured on Washington street, in the borough of Brooklyn, while engaged in taking a photograph of a building on that street. He was struck by a wagon belonging to the street cleaning department of the city of Rew York. The accident occurred between half-past one and two o’clock in the afternoon, on December 27,1906. In order to take the picture the plaintiff placed his camera, which was supported by a tripod, on the sidewalk near the curb. The only vehicle which he then saw was the city ash cart which subsequently struck him. This *83 was standing about one hundred or one hundred and fifty feet down the street. The plaintiff stood right at the edge of the curb — he is not certain that one foot may not have projected over the curb into the highway — and covered his face with a dark cloth in order to focus the instrument. While his vision was thus obscured the cart came along and some portion of the vehicle struck his hip and knocked him down into the gutter. From the time when he thus covered his head with the dark cloth until the ash cart collided with his body a period of five minutes elapsed during which he was practically blind to what was going on in the highway; and it is the fact that he voluntarily thus blinded himself for such a length of time in such a situation which seems to me conclusive evidence that he was guilty of contributory negligence as matter of law. To affirm this judgment would be to hold that it can be regarded as the act of a reasonably careful person to shut one’s eyes and stand on the edge of a sidewalk in a busily-traveled public street in a great city for five minutes at a time. I do not think that any court lias heretofore gone so far as to pronounce such conduct prudent. I fix the time during which the plaintiff stood at the curb with the cloth over his head as five minutes,- because the plaintiff repeatedly testified to that period as his best judgment. When he was asked by his own counsel how long he was under the cloth focusing the camera before the wagon struck him he answered: “ Well, it takes from three to five minutes to focus on a building of that size. I couldn’t tell .exactly the time.” He was then asked to give his best judgment, and said : “ Well it was not over five minutes ; it was the same ash cart that struck me that I saw down the street ; there was no person on the wagon at all at the time.” Again upon cross-examination he testified in reference to this matter of time as follows : “ Q. Mr. Mastín, in this attitude with your camera pointing toward the store, the picture of which you were taking, as you were standing as you have stated, not remembering or not knowing, recalling at this time whether you were bending or whether one foot was or was not beyond the curb *84 and in the street, and the cloth over your head and face — how long a time did that last, taking those things together ? A. Well, it takes, as I said, from three to live minutes to focus ; I couldn’t tell you exactly the minute; I am quite sure that it was not any longer than that; I saw the wagon standing perhaps 100 to 150 feet down the street, as near as I could judge.” And still further on in the course of his cross-examination he repeated that it was not over five minutes during which he had the cloth over his head before he was struck. These repeated references to five minutes justify and I think require us to accept that estimate of time as the period which really elapsed during-which the plaintiff’s head was covered with his camera cloth; and as I have already intimated it seems to me too clear for argument that it was contributory negligence as matter of law to assume such a position in such a place under such circumstances for such a length of time. My brother Werner’s suggestion in the dissenting opinion that the question of contributory negligence should be deemed a question of fact for the jury instead of being decided against him as a question of law because a majority of all the judges who have considered the case have entertained that view would preclude us from ever reversing a judgment of this character for contributory negligence when there were three dissents in this court. He concedes that instances may arise where persons engaged in lawful street occupations are so affirmatively careless as to preclude them as matter of law from recovering for injuries which they sustain through the negligence of others, but declares that the case at bar does not belong in that category. This is the precise point upon which we differ. He would be entirely right if the element of time could properly be disregarded ; but we think that the time during which the plaintiff voluntarily blinded himself was too long to be excusable ujDon any reasonable theory of prudent conduct. In the course of the development of the law-of imputed negligence as applied to municipalities the courts have gone very far in the direction of charging the defendants with a *85 pretty strict and rigorous degree of liability in the maintenance of the public streets in a safe condition for travel. Surely it is not requisite for the protection of the public to extend this liability so as to make a city responsible for an accident which befalls a person who is imprudent enough to do what the plaintiff did in this case. The judgment should be reversed, and a new.trial granted, costs to abide the event.