O'Callaghan v. Metropolitan Street Railway Co.

Hirschberg, J.: The plaintiff was injured on the southerly crossing of Amsterdam avenue in Manhattan at One Hundred and Fourth street, being caught between an uptown and a downtown car; it was in the daytime, and she was crossing the avenue from the west. Before attempting to cross she looked up and down the avenue. From the south a car was coming up and was then a little above One Hundred and Third street. From the north a car was coming down and was then at One Hundred and Sixth street. When she had crossed the downtown track the uptown car was so close to her that she could not cross that track with safety, and while she stood between the tracks waiting for that car to pass, the downtown car came along quite fast and without the warning of the gong, and the injury was occasioned. The question of the defendant’s negligence was scarcely raised upon the trial. No witnesses were examined upon the trial, arid no discussion is necessary to establish the fact that a jury may find negligence from the circumstances presented by the record. It was claimed below, however, and it is insisted upon the appeal, that the plaintiff was chargeable with contributory negligence on the authority of Davenport v. Brooklyn City R. R. Co. (100 N. Y. 632). The cases are essentially different. In that case the plaintiff desired to board a car on the south-bound track. He was standing on the westerly side of the tracks when he saw it coming, the proper side from which to board it. Instead of remaining there until the car reached him, he crossed both tracks to the easterly side, signaled the car and then endeavored to board it from between the two tracks, while, as he knew, a car was approaching on the northbound track, by which latter car he was injured. He saw the peril before he placed himself in the way of the collision, and after he took his unnecessary position of danger he had time to have returned to the easterly side of the tracks, or even, as the court found, to have gotten upon the car in safety had he chosen to do so. The [576] result was that it was impossible for the injury to have resulted without some carelessness on his part. . Whether the plaintiff was negligent in this case was a question of fact. She was not' bound to assume that it would be dangerous to attempt to cross a street with á car on the nearer track two blocks away, or that such car. would come upon her without warning before,another car less "than, half the distance from her would reach her upon the further track, and whether, under such circumstances, she failed in the exercise of ordinary care was clearly for the jury to determine. The judgment and order should be affirmed. All concurred, except Woodward, J., dissenting, and Goodrich, P. J., absent Judgment and order affirmed, with costs.