Phillips v. Crosstown Street Railway Co.

Lambert, J.: The facts are very fully and fairly stated in the dissenting opinion, and their repetition seems unnecessary. The single question of moment is as to intestate’s freedom from contributory negligence. It must be conceded that, except for the [877] claimed right of intestate to rely upon the observance of rules 50 and 50a, by the motorman of the car which injured him, there could be no question for a jury. I 'understand such concession to be made by the dissenting opinion. The question then is the effect of such rules upon the respective duties of intestate and such motorman. Both rules are fully set forth in the opinion of Hr. Justice Kruse. It is obvious, from the mere reading of these rules, that their primary design was to protect persons alighting from standing cars in usual operation. They were evidently not designed especially for the protection of employees when not so alighting. It is also doubtful whether they have any application to the unusual and, in a way, emergency situation presented by the facts of this case. They were designed for the ordinary operation of the road rather than for the temporary requirements occasioned by the repairing of this bridge. If they have no application, then intestate had no right, as it is claimed he did, to rely upon same in governing his course of conduct. Eule 50 simply provides for slow speed while passing standing cars. Such requirement is somewhat elastic and would vary when construed by different employees, and the proof shows no flagrant violation in this particular. It is upon rule 50a that chief reliance is placed, it being urged that the stopping of the car as required by this rule (assuming it has application) would involve such a slackening of its speed as would have permitted intestate to reach the door by which he sought to enter his car. The defect in such argument lies in the rule itself in connection with the proven facts. Such rule does not require the stopping of the moving car until its forward end was in juxtaposition with the rear end of the standing car. It is undisputed that intestate received his injuries somewhat prior to the time when the moving car reached that position, and hence it cannot be argued with much force that the failure so to stop in anywise contributed to the accident. Nor does the proof demonstrate that the car was moving at such a rate of speed at the time intestate was injured that it could not have been thereafter stopped as required in strict compliance with rule 50a. [878] However, in the view we take of the controlling facts in this case, it is not necessary to determine whether such rules have application. For, besides the application of these rules to this situation, there is a principle of law applicable which would seem to defeat a recovery. When the fender or lifeguard of the car had been changed intestate then stood in a place of safety. There was no duty for him to perform which required him to pass along this “devil strip.” Neither was there any apparent occasion for haste upon his part in entering his car. There still remained ahead of his car another standing car, for the crossing over of which he must delay moving his car up to the bridge. His objective point, it is true, was the open door at the further end of the car, opening onto the “ devil, strip.” Eventually he would have to reach that door. Of course he knew of the presence of the moving car, for he was awaiting its departure. His failure to observe its approach would be the grossest negligence upon his part. We must assume he saw it, as it is only upon that theory that there can be any pretense of a recovery in this action. Thus situated and so observing this oncoming car, intestate had a choice of several courses of action. The obviously safe thing for him to do was to wait until the car passed him, if he especially desired to adopt a course along this “ devil strip.” Or, desiring to at once proceed, he could take a few additional steps required to pass the other side of his car along the driveway outside the tracks.. Either of such courses of action was perfectly safe and embodied no element of danger whatever. It neither required consideration of the application of any rules of the company, nor was dependent, for its safety, upon the conduct of any other employee. While this presented a choice of action, and with no emergency apparent to distract bis attention or affect his judgment, intestate chose the only way that embodied any element of danger and started along the “devil strip” in the very face of the oncoming car. Not only that, but it is very conclusively shown by the evidence that he realized his danger almost from the time he started and undertook a contest of speed with this moving car, to see which should reach the open door first. Such conduct by intestate would seem to be squarely within the decision of the Court of Appeals in the case of Hogan v. [879] N. Y. C. & H. R. R. R. Co. (208 N. Y. 445), which I read to hold that where an employee has his choice of two ways of passage, the one of which is obviously open and safe, and the other of which involves an element of danger, his voluntary selection of the latter renders him guilty of contributory negligence as a matter of law. However regretable the results to the plaintiff, I see no justification for holding the defendant responsible for an accident wholly chargeable to error in judgment upon the part of intestate. The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellants to abide the event. All concurred, except Kruse, P. J., and Robson, J., who dissented in an opinion by Kruse, P. J.