Jackson v. Union Railway Co.

McLaughlin, J.: This action was brought to recover damages for personal injuries alleged to have been sustained by reas'on of defendant’s negligence. Plaintiff had a verdict, and, from the judgment entered thereon, defendant has appealed. Upon the trial it appeared that the defendant operated a double-track railway on Third avenue, at its intersection with One Hundred and Sixty-third street, in the city of New York, the westerly track being used for south-bound and the easterly for north-bound cars, and, from the testimony of plaintiff’s witnesses, it appeared that between seven and eight o’clock in the morning of the 27th of June, 1899, the plaintiff attempted to pass over these tracks; that before doing so he stopped on the sidewalk at the southwest corner of One Hundred and Sixty-third street and Third avenue, to permit a south-bound car to pass; that after this car had passed, he proceeded at a “three-mile gait” until he had reached the space between the north and south-bound tracks, which was, according to his own testimony, between five and six feet, when a north-bound car, which he had observed about one hundred feet away when he first attempted to cross, was proceeding faster than he expected ; at that time he was in the space between the north and south-bound tracks, or else one foot was in the space and one foot still on the south-bound tracks ; that when he made this observation, he stopped and then stepped back upon the south-bound tracks, and almost immediately, and without warning, was struck and knocked down by a south-bound car which he had not seen before, and in this way sustained the injuries complained of. There is no dispute but what the plaintiff was struck by the south-bound car, or that when the car was stopped he was under [163] the front platform; nor is there any dispute but what the southbound car, when he first attempted to cross the tracks, was less than one hundred feet away. The testimony of the defendant’s witnesses tended to show that, when the south-bound car was only a few feet from the crossing, the plaintiff, without looking to see whether or not a car was coming, suddenly started to cross and was struck in about the center of the south-bound tracks. At the close of plaintiff’s case a motion was made to dismiss the complaint, which was denied and an exception taken. This motion was renewed at the close of the whole case, where a similar ruling was made and an exception taken. We are of the opinion that the complaint should have been dismissed. The plaintiff was not entitled to recover, unless he established that Ms injuries were due to the negligence of the defendant and that his own negligence did not contribute thereto, and this he failed to do. Upon his own testimony it appears that he had crossed the south-bound track and had succeeded in getting into the space between the two tracks, when suddenly he stopped and then stepped back upon the south-bound tracks. The motorman of the southbound cal’, manifestly, had Ms car under control, because he stopped it within a very few feet of, and before it had passed over, the plaintiff. It is true that the plaintiff was knocked down, but the record will be searched in vain to find any proof to the effect that the motorman of the south-bound car could have stopped it after the plaintiff stepped upon the south-bound tracks. That the motorman had his car under control is evidenced by the fact that the car was stopped within five or six feet, and there is no proof that it could have been stopped within any less space. There was no obligation resting upon the motorman to stop the car until the danger of a collision appeared. (Stabenau v. Atlantic Ave. R. R. Co., 15 App. Div. 408; Greenberg v. Third Ave. R. R. Co., 35 id. 620; De Ioia v. Met. St. Ry. Co., 37 id. 455 ; Johnson v. Third Ave. R. R. Co., 69 id. 247.) Nor was the motorman negligent because he did not anticipate that the plaintiff, after he had passed over the southbound tracks, would retrace his steps in order to avoid a collision with a north-bound car. On the contrary, he had a right to assume, the south-bound car being farther away from the plaintiff than the [164] north-bound, that after the plaintiff had commenced to pass over the south-bound tracks he would continue in the same direction in which he was going until he had cleared those tracks, and if there was any danger of his colliding with the north-bound car, that he would remain in the space between the two tracks, instead of again stepping back upon the south-bound tracks. The plaintiff, therefore, failed to prove any negligence on the part of the defendant which entitled him to recover. We are also of the opinion that the plaintiff’s own negligence contributed to his injuries. There is no proof that he exercised any care, before leaving the sidewalk, to ascertain whether the car which subsequently struck him was approaching, nor is there any proof that he exercised any care in this respect before stepping back upon the south-bound tracks. But in answer to these suggestions it is said — not by counsel — that plaintiff cannot be said to be negligent for an error of judgment in acting, he at the time being in a dangerous position. There is no force in the answer, because if he were in a dangerous position it was by reason of his own negligence in that he had failed to observe the position of the south-bound car before he commenced to cross at all. (Schneider v. Second Ave. R. R. Co., 133 N. Y. 586.) In the case cited the rule is stated as follows: “ If the party by his own negligence has placed himself in a situation of peril, and being called upon in a sudden exigency to act, mistakes his best course, through an error in judgment, he is not thereby relieved. He is not, in such case, held for his error in judgment in failing to adopt the best means of escaping from a sudden peril, but he is liable for the original negligence which placed him in such peril, provided that negligence appreciably contributed to the happening of the accident.” (See, also, Hogan v. Central Park, N. & E. R. R. R. Co., 124 N. Y. 647.) That it was an act of negligence on the part of the plaintiff to step upon the southbound tracks without ascertaining whether cars were proceeding on those tracks, cannot, we think, be seriously questioned, and especially in view of decisions bearing upon that subject. (Woodard v. N. Y., L. E. & W. R. R. Co., 106 N. Y. 369 ; Thompson v. Buffalo Railway Co., 145 id. 196; Doyle v. Albany Railway, 5 App. Div. 601; Martin v. Third Ave. R. R. Co., 27 id. 52; Biederman v. Dry Dock, E. B. & B. R. R. Co., 54 id. 291; Madigan, v. Third Ave. [165] R. R. Co., 68 id. 123; Johnson v. Third Ave. R. R. Co., 69 id. 247.) Upon both grounds, therefore, we are of the opinion that the court erred in denying defendant’s motion to dismiss the complaint, and for the error thus committed the judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event. Van Brunt, P. J., and Ingraham, J., concurred; O’Brien and Hatch, JJ., dissented.