Crombie v. O'Brien

Blackmar, J.: The plaintiff left the sidewalk with the intention of boarding a trolley car which had stopped for the purpose of taking on passengers, and when within eight feet of the car was run down by defendant’s automobile. The defendant’s car [808] was in that place in violation of an ordinance of the city of New York, and the question is whether, under those circumstances, the plaintiff exercised due care in guarding against injury from the defendant’s car entering the prohibited zone. The ordinance forbidding vehicles to move within eight feet of a trolley car standing for the purpose of receiving or discharging passengers, was enacted for the very purpose of preventing just such accidents as the one under consideration. It was passed in recognition of the fact that passengers leaving and entering cars have their attention' so directed to this purpose that they can give but little attention to passing vehicles. And yet it is proposed to us in the dissenting opinion by Mr. Justice Thomas to decide that the plaintiff was negligent in failing to effectively guard against defendant’s violation of the law. It cannot be contended that there is not some evidence of the exercise of care, for the plaintiff testified that she glanced to the east but did not see the defendant’s car. But it is claimed that this is not evidence of freedom from contributory negligence because she did not see what was before her face and guard against it. This places a burden on the plaintiff, justified neither by reason nor authority. She was bound to exercise such care only as was commensurate with the danger. That necessarily means the danger apparent to her or which she should have apprehended. But I suggest that the rule is well settled that one may rely, in a measure at least, on the presumption that others will obey the law. The defendant had no more right to drive his car within eight feet of the standing trolley car than to drive it through a safety zone physically marked off, such as those established for the safety of pedestrians in Fifth avenue, Manhattan. In fact, the ordinance was enacted to create a safety zone in order to enable passengers to enter it and give attention to mounting the steps of the standing car, without danger from approaching vehicles. It is suggested that as she did not see the slowly-approaching car, the look was not the scrutiny which the law required. The purpose of looking, whether ifc is called a scrutiny or glance, is to see. If the plaintiff had seen the approaching car, she could still have relied on the presumption that it was slowing down for the purpose of stopping in obedience to the law. The [809] plaintiff relied on the assurance of safety in the eight-foot zone which the law gave, and that reliance is not negligence as matter of law, and, it being a question of fact, we should affirm the judgment, with costs. Stapleton and Rich, JJ., concurred; Thomas, J., read for reversal, with whom Jenks, P. J., concurred in separate memorandum.