Little v. Third Avenue Railroad

McLaughlin, J.: On the 15th of January, 1900, between two and three o’clock in the afternoon, the plaintiff, then about thirty-nine years of age, attempted to cross defendant’s track at the intersection of Thirteenth [331] street and Third avenue, and in doing so was struck by one of its south-bound cars and seriously injured. He brought this action to recover damages therefor upon the ground that the same were caused solely by defendant’s negligence. At the trial at the close of plaintiff’s testimony the complaint was dismissed and' he has appealed. The plaintiff testified, in substance, that as he approached the easterly tracks of the defendant he looked and saw a north-bound car approaching, and that he also then, or shortly thereafter, noticed a south-bound car approaching, which was about forty feet away; that he waited until the north-bound car, which stopped at this point to take on or let off passengers, had started and proceeded far enough to allow him to pass in the rear of it, which he did, and just as he stepped upon the south-bound tracks he was struck and injured. The witness Cohen testified, and he was corroborated in some respects by the witness Nesi, that the cap which struck the plaintiff was in sight when plaintiff passed the southeast corner of Thirteenth street, and that when it struck him it was running at a rapid rate of speed, but was stopped within a few feet after the collision occurred. There was absolutely no evidence to the effect that the plaintiff looked to see whether a south-bound car was approaching, or that he took any precautions whatever for his own safety after he stopped to let the north-bound car go by and before he stepped upon the southbound tracks. Under such circumstances, I do not see how the trial court could do otherwise than dismiss the complaint. It is apparent that if the plaintiff had exercised any care whatever after the north-bound car had passed and before he attempted to step upon the south-bound tracks, he would have seen the ear which struck him,' and thus the accident would have been avoided. Cohen could see the car approaching, and manifestly the plaintiff could if he had looked, as the accident occurred in the middle of the day, and there was nothing so far as appears to obstruct the plaintiff’s vision or distract his attention. Of course he was just as much obligated to look out for his own safety as the defendant was to prevent his being injured. (Jackson v. Union Ry. Co., 77 App. Div. 163; Johnson v. Third Ave. R. R. Co., 69 id. 247.) Both parties had an equal right to the use of the street at this place, and while the law requires the defendant to move its cars [332] with care, to the end that persons crossing the street may not be-in jured, it also requires such persons to exercise an equal amount of care to prevent being injured. If a person using the street fails to-exercise this care and is injured, he cannot recover from the defendant for the injuries sustained, inasmuch as his own negligence has contributed to it, and this is precisely what occurred in this case. The plaintiff carelessly and heedlessly stepped upon defendant’s tracks, and taking into consideration all of the testimony which he-offered, it is apparent that had he exercised the care referred to he-would not have been injured. The judgment appealed from, therefore, must be affirmed, with costs. Van Brunt, P. J"., concurred; Patterson and Lattghlin, JJ. dissented.