Zenner v. Brooklyn Heights Railroad

McLaughlin, J.: I think the complaint was properly dismissed. The evidence, in my opinion, did not establish the negligence 'of the defendant or plaintiff’s freedom from contributory negligence. According to the plaintiff’s own testimony, when he was about six feet from the point where he was struck by defendant’s car, he stopped and looked, and then saw the car approaching about 150 feet away. He proceeded, looked again, and saw the car 75 feet away, moving more rapidly than when he first noticed it. Notwithstanding this fact he deliberately walked onto the track directly in front of the approaching car. He then looked again, and while he attempted to retrace his steps, the car was so close to him he was unable to get out of its way. The plaintiff at all the times was practically facing the car and there was nothing between him and it to obstruct his view. There was an obligation resting upon him to take at least some precaution for his own safety. He had no right to assume, as contended, that the car would be operated in such a manner as to permit him safely to cross in front of it. (Freeman v. Brooklyn Heights R. R. Co., 82 App. Div. 521.) Nor do I think that the rights of the parties at this point were equal. It.was not at a regular crossing and it has frequently been held that between street crossings — and I think the same rule here applies — the right of a street railroad to operate its cars upon its tracks is superior to that of a pedes [196] trian. (Fenton v. Second Avenue R. R. Co., 126 N. Y. 625; Thompson v. Buffalo R. Co., 145 id. 196; Barney v. Metropolitan St. R. Co., 94 App. Div. 388.) The truth is the plaintiff deliberately chose to place himself in a position of danger and his act in doing so was, in my opinion, negligent. It may be assumed that the motorman saw him approaching the tracks and that he did not sound the gong on the car. But there was no reason why he should do so. The plaintiff had stopped and saw the car approaching, and the motorman had a right to assume that he would wait until the car passed. As was said in Byrnes v. Brooklyn Heights R. R. Co. (148 App. Div. 794): “ Pedestrians can and do stop just short of the danger line in thousands of instances every day, and unless there is something to indicate to the motorman that a different result is contemplated, there is no reason why he should not operate his car at the usual rate of speed at points other than street crossings.” When all of the testimony of the plaintiff is considered, the only inference which, as it seems to me can be fairly drawn from it, is that without any regard for his own safety he stepped directly in front of the car and in this way the accident occurred. In principle the case cannot be distinguished from Lofsten v. Brooklyn Heights R. R. Co. (184 N. Y. 148); Byrnes v. Brooklyn Heights R. R. Co. (supra); Tully v. New York City R. Co. (127 App. Div. 688); Freeman v. Brooklyn Heights R. R. Co. (supra); Weiss v. Metropolitan St. R. Co. (33 App. Div. 221; affd., 165 N. Y. 665). I think the judgment should be affirmed, with costs. Clarke, P. J., and Scott, J., concurred; Laughlin, J., dissented.