Young v. Herrmann

Jenks, J.: The action is for negligence. The plaintiff attempted to cross .Third avenue at Twénty-tliird street in the borough of Manhattan from west to east- upon the south crosswalk between two moving wagons of the defendants. As travel in the-street was impeded by snow therein, defendants’, second wagon was being helped along by a rope attached from the first wagón. The plaintiff came against the rope, was thrown to the ground and was injured.. He recovered a verdict for $3,500 and the defendants appeal. Third avenue is a thoroughfare of a large city much traveled, and at the time and place, of the accident many travelers were therein. . Travelers constantly cross these city streets between moving vehicles, and, almost necessarily in thoroughfares at busy hours. When the defendants’ driver extended this rope between the moving vehicles he obstructed a space which ordinarily is clear, and is measured as a possible passage by the traveler with an eye only to the extent of the space. The fact of obstruction was not affected by the circumstance that the obstruction was shifted by the progress of the wagons along the street (Davis v. Mayor, etc., of New York, 14 N. Y. 506, 524), for the obstruction existed in the street .as to any point where a, traveler sought to pass between the wagons. The fact that this device was necessary to move the second wagon would not free the defendants from imputation of negligence. If, as a consequence of such device, they obstructed the street, they were bound to observe due care to apprise or to warn other users of the street of the obstruction. As between the' defendants and the plaintiff there [447] was no superior right of way; each must observe due care for' his own safety and for the safety of the other. (Barker v. Saxage, 45 N. Y. 191; Brooks v. Schwerin, 54 id. 343.) The defendants’ driver, as he approached this crosswalk, was bound to foresee that a footman • might be there intending to cross over; (Moebus v. Herrmann, 108 N. Y. 349.) There was a .horse harnessed to the second wagon and a driver in it, so that it would appear as a separate and complete outfit. I think that under such conditions, the circumstances of time and place, and in view of the testimony for the plaintiff that the space was twelve or fifteen feet, the defendants might be held to foresee that a .footman might attempt passage between these wagons. .Tlieir negligence ■ then depended upon the question whether they had exercised due - care in apprising or in warping the plaintiff of this obstruction of such space, and that question was for the jury. (Coxhead v. Johnson, 20 App. Div. 605; affd., 162 N. Y. 640.) The learned counsel for the appellants asks wherein were the defendants negligent. I do, not think that under the circumstances it can be said as matter of law that the obstruction itself was sufficient warning. The jury did not need to go so far, as the learned counsel for the respondent ' suggests, as to find negligence in the absence of some telltale upon the rope like fluttering rags, or hanging light, or the émployment of someone to w’alk beside the wagons to give warning. Upon the record the jury may have concluded that liability should be cast upon the defendants for the omission of their second driver to warn the plaintiff; for that driver testifies that he saw the plaintiff about to cross in the space. He does testify that he cried out to the plaintiff, but in vain. But. the plaintiff testifies that he “ heard nobody.” before he fell; that he heard noises, but that he did not know what it was, but that he only heard, “yelling” or “shouting” when he was, knocked down. Officer Eeville, who saw the entire occurrence, testifies that he first heard shouting as soon as the plaintiff commenced to struggle, but that “the drivers of the wagons made no outcry.” The plaintiff had the right to suppose that there was no. obstruction by rope or other like attachment of the clear space between the two wagons thus equipped save so far as he observed it or his attention was directed to it. . (Coxhead v. Johnson, supra.) The acci [448] .dent happened at six-forty-five p. m. on January 3,6, 1904; The plaintiff testifies tliat' it was “pretty dark,” and that the space between the wagons was about twelve of fifteen, feet; that he waited for the front wagón to pass; that he did not see the rope; that if was light enough for him fb see'the rope if he had looked ' . for it,.if he'had known it was there,.but of that he. was ignorant, and that he thought lie had plenty of room to pass. -Officer Wundis testifies- that he first noticed the rope when, they lifted up the plaintiff '; that at "that hour, it was- “ a little bit dark,” “ not extra bright,” “ kind .of a winter evening.” , Officer Neville testifies that ■ after the accident he then found the rope attached, but that it was impossible to distinguish it. Brueckner, an eye-witness, who was op the southeast, corner of these streets,, testifies that when the wagon passed'him within six or seven feet' lib happened to look' • down and-he happened to see. the rope,, but if he had come across from the other side he would not have seen -the rope because of the darkness; While there is evidence that there were lights, from the public lamps and from the. shops, there is also evidence that natural and artificial light was -obscured by a station of the elevated railway. .In-view of the fact that the accident happened at this lioiir ‘ of a winter’s- evening, it seems to me that the question whether, in these com¡3lex conditions of light and dark, the plaintiff in the exercise of due cafe ought to-seetlie rope, Was one of fact-arid that his conduct generally, presented a question for the jury. (Coxhead v. Johnson, supra.) The damages are not so excessive as to warrant . our interference. ,". _ ' , - I advise affirmance. Woodward and Bigh, JJ., concurred; Gaynor, J., read for ' reversal-. z