Lynch v. Third Avenue Railroad

McLaughlin, J.: Sometime during the afternoon of the 3d of February, 1900, the plaintiff, while endeavoring to cross from the northeast to the northwest corner of Amsterdam avenue at its intersection with One Hundred and Forty-first street, was struck by one of the defendant’^ north-bound cars and injured. He brought this action to , recover damages therefor, upon the ground that the same were caused solely by the defendant’s negligence. He had a verdict, and from the judgment entered thereon and from an order denying a motion for a new trial defendant has appealed. The evidence adduced at the trial is uncontradicted to the effect that when the plaintiff left the northeast corner of One Hundred and Forty-first street he saw the car which subsequently struck him approaching, and it was then “ about a block and a half to two blocks away.” It was plainly visible and there was nothing to prevent his seeing it from that time until he was injured, had he endeavored to do so. It was daylight and there was nothing in the street to obstruct his .vision. It does not appear that he exercised any care whatever after he left, the corner of One Hundred and Forty-first street, or that he looked to see where the car was, but instead, walked heedlessly and carelessly upon the tracks and was injured. Upon such facts the plaintiff failed to meet the burden which rested upon him of showing that he was free from contributory negligence in not seeing the car before he stepped in front of it. (Little v. Third Ave. R. R. Co., 83 App. Div. 330; Jackson v. Union Railway Co., 77 id. 161; Johnson v. Third Ave. R. R. Co., 69 id. 217.) Whether or not a gong was sounded or notice given of the approach of the car was of no importance because the plaintiff saw the car and knew it was approaching. Nor is there any force in the suggestion that he had a right to assume that the car would be so controlled that he could cross the street in safety. He had no more right, under the circumstances, to indulge in this assumption than the motorman of the car had to assume that the plaintiff would so control his own movements with reference to the car that he would not be injured. Plaintiff, of course, was as much [606] obligated to look out for his own safety as the defendant was to prevent his being in jured. Both of the parties had an equal right to the use of the street at this place, and while it was the duty of the defendant to move its car with care, to the end that the plaintiff would not be injured, plaintiff was also required to exercise au equal amount of care to prevent his being injured (Little v. Third Ave. R. R. Co., supra), and this, the record before . us shows he did not do. It follows, therefore, that the court erred in denying defendant’s motion- made.at the close of plaintiff’s case and renewed at the close of the whole case, to dismiss, the complaint, and the exceptions to such rulings were well taken. It is also urged that the trial court erred in charging the jury, but it seems unnecessary to discuss the exceptions taken in this respect, inasmuch as upon a hew trial the same questions may not again be presented. It follows that the judgment and order appealed from must be revei’sed and a new trial ordered, with costs to the appellant to abide' the event. ■ . ■ Van Brunt, P. J., concurred.