Wise v. Brooklyn Heights Railroad

Hatch, J. : The testimony disclosed that the plaintiff was a passenger upon the defendant’s car for the purpose of transportation from the point where he entered the car to a trolley station on Bay Ridge avenue, [247] "between Tenth and Eleventh avenues, in the borough of Brooklyn. This point is in the suburban section of' the borough of Brooklyn, .and is comparatively thinly populated. It is in a long block, and the trolley station is not at the point of intersection of any street, but was established for the accommodation of passengers living in that locality. The plaintiff arrived at the point of destination at about ten o’clock at night. The car upon which he was. riding -did not entirely stop.,, but ran very slowly, sufficiently so for the plaintiff to alight without injury. The plaintiff lived between Tenth and Eleventh avenues, and to reach his habitation he was required to cross the adjoining track upon which the cars ran in an ■opposite direction. He passed by the rear end of the car upon which he had been riding, and which still continued in motion, reached the first rail of the second track, was struck by the fender of a car running thereon at a high rate of speed, and received the injuries of which complaint has been made. The proof was sufficient to establish negligence upon the part of the defendant in the operation of the car which struck the plaintiff; but the court was of opinion, within the rule laid down by this court in Landrigan, v. Brooklyn Heights R. R. Co. (23 App: Div. 43), that the plaintiff was guilty of contributory negligence in failing to observe the approach of the car, and for this reason it dismissed the •complaint. . . While the case in some of its.features is quite similar to the case which controlled the action of the court, yet, in some of its aspects,, it is clearly distinguishable therefrom. In the case relied upon, the accident happened in broad daylight, and it was evident that the plaintiff, in the exercise of ordinary care, ought to have discovered •and. avoided the approaching car. In the present case the accident happened at night, and the distance from which the car might have been observed was not entirely clear, it being insisted by the plaintiff that the obstruction of the car from which he had alighted, and the surrounding darkness after he had. passed it, rendered the proximity of the approaching car quite uncertain. It appeared from the testimony of the motorman upon the car from which the plaintiff had alighted, that when the plaintiff alighted the approaching car was then distant from 800 to 1,200 feet, at a time when it was visible to him. The approaching car ran upon a descending grade, [248] and, if the plaintiff saw it at the time when he alighted, he might well have assumed that he would be able to- cross the adjoining track before it reached such point; and the question whether ordinary prudence required him to again look before crossing the track would have been clearly a question for the jury. The plaintiff, however, testified that as he' passed the first car he looked in the direction of the approaching car,-but did not discover its proximity to him at that time. Whether he should have then seen that the car was' in close proximity and likely to render the crossing dangerous is a matter which we think presented a question for the jury under all the circumstances surrounding the situation. It is easy of deduction, we think, that a person in the light of day, with nothing to obstruct his vision, ought to discover the approach of a car if he used his eyesight; and yet, at the same place, by reason of darkness and the existing obscurities, he might not, in the exercise of prudence, determine that the. car- was so close as to render it dangerous to attempt the crossing of the track, and under such circumstances the question ought not to be answered by the court. But there is another view of the case which tends strongly to excuse the plaintiff’s act. While it is true that in the thickly-settled parts of the city the practical operation of cars does not admit of the actual.stoppage of an approaching car at a street crossing where a car running in the opposite direction is at a standstill, for the purpose of jDermittin'g passengers to alight, as such stoppage might continually embarrass the traffic of the stree;, yet such rule does not apply in suburban localities, where the burden of use of the street is practically limited to the passage of cais thereon and a few vehicles. Under such circumstances the railroad company,' in the operation of its cars, has the practical control of the situation, and may, by the exercise of a little care, make the place where passengers are expected to alight perfectly safe, so far as its operation is concerned, with little or no hindrance to any other persons or vehicles making use of the street. When a car has come to a standstill, or is moving so slowly as- to permit persons to al-ight, and passengers do alight at such place, the railroad company is chargeable with notice that the passenger thus alighting is as likely to pass to one side of the street as to the other, and under such circumstances the company ought to be and is justly held to a rigid degree of care in making [249] the place safe for the .passenger to reach either side of the street. Tinder such circumstances there is scarcely justification for the company to run its cars at a high rate of speed past the standing car which it knows is in that position for the purpose of permitting passengers to alight, and, as the whole situation is the creation of the defendant, it ought not to be excused for inflicting injury upon a passenger which it has carried to that point, unless such passenger be the willful or heedless instrument of his own injury. Under such conditions we think it does not establish any harsh rule or mitigate in any sense the doctrine of ordinary care for the passenger to-assume that, during the time necessary for him to alight and reach a place of safety upon either side of the street, the defendant will not make the surrounding conditions dangerous to him. We think, therefore, that the conduct of the plaintiff under the circumstances of this case is to be governed by the surrounding conditions, measured by the obligation which the defendant owed him not to make the place dangerous, and that it so far excuses his failure to observe the approaching car as to require the submission of his negligence to the scrutiny of a jury. (McGreevy v. Buffalo Bail-way Co., 145 N. Y. 621. See record, Court of Appeals Oases, volume 1260, in the Brooklyn Law Library.) The case of Thompson v. Buffalo Ry. Co. (145 N. Y. 196) is not in contradiction of this view. The attempt to cross the street in that case was at a point where there were no intersecting streets/ and no station at which passengers were expected to alight, and the car was run through a thickly-settled locality. Besides, the plaintiff in that case was the heedless instrument of her own injury. While we might be willing to say that the doctrine announced in the landrigan case would be conclusive had this accident happened in the light of day and in a thickly-settled locality, we are not willing to say-that such rule should be applied to the locality and the conditions which surrounded'this accident. We conclude, therefore, that the case should have been submitted to the jury, and for this reason the judgment should be reversed and a new trial granted. Woodward, J., concurred ; Cullen and Bartlett, JJ., concurred in result; Goodrich, P. J., read for affirmance.