Wood v. Pace

McCann, J. This action was brought by the plaintiff to recover for personal injuries sustained as the result of a collision with defendant’s automobile. The accident occurred- on January 17, 1925, on a street in the city of Schenectady. This street runs in an easterly and westerly direction in front of Sherman’s hardware store which is located on the north side thereof and at a point variously estimated at from 75 to 300 feet westerly from a curve in said street. The plaintiff came out of said store and attempted to cross the street in front of the store in the middle of the block, or between two regular crossings. An automobile was parked along the curb in front of the store and was headed in a westerly direction. Plaintiff testifies that in starting to cross the street he stepped in front of this auto. Before he left the curbstone he looked both ways up and down and saw nothing; furthermore that as he stepped in front of the parked car, the defendant’s automobile approached from his left and came right up to him; that as he passed in front of the parked car, he looked but that he did not see the defendant’s car until it struck him. When he saw the car he suddenly dodged back to avoid being struck by the front of the defendant’s car and that thereupon the handle of the door on defendant’s car struck him on the chest, knocking bim to [388] the pavement. Plaintiff further testified that he was from eight to nine feet from the curb when he was struck; that it was about three feet from the side of the parked car to the first rail of the double trolley line which runs through said street. Opposite the hardware store there was a car stop where it appears passengers were frequently discharged and received on the street car. Plaintiff testified that he was crossing the street for the purpose of taking the trolley car at said stop. Although the complaint sets forth several grounds of negligence, upon the argument it was stated that the specific negligence charged was that the defendant was driving at too great a speed on a public highway between intersections, and opposite a place where trolley cars took on and discharged passengers. The stop in question was on the southerly side of the street. Defendant’s car was - on the northerly side of the street and astride the northerly rail of the trolley tracks. The trolley stop was for the use of passengers riding on the east-bound cars. There is no evidence that defendant was negligent. He was driving to the right of the center of the street where he had a full right to drive. There was no street crossing where the accident occurred. There was no other vehicle or obstruction in the street. Neither was there any congestion of traffic. There was no occasion for him to believe that any one would pass into the street from the far side of the car parked at the curb. Nor was there any duty resting upon him to sound his horn to warn some unseen person who might rush into the street in front of his car. He was not driving at an excessive speed under the existing circumstances. The only witness as to the speed of the defendant’s car says that he knows little or nothing about the speed of a car; that this car might have been going anywhere from twenty-one to twenty-eight miles per hour, but it was not going less than twenty miles an hour. There is no evidence that the defendant did anything that he ought not to have done, nor was he committing any act of omission by reason of which he contributed in any degree to the plaintiff’s injury. As a matter of law plaintiff’s negligence was the cause of his injury. He 'went from the north curb into the street where any traffic going west would rightfully be passing and if he had passed across -the westerly end of the parked car and such car obstructed his view east he should have looked toward the east before going into the immediate line of west-bound traffic. He did not look else he would have seen defendant’s car approaching. There was no obstruction to his view and before he had gone three feet beyond the parked car defendant’s car struck him. He stepped into the line of traffic, a place of danger, without looking. Indeed, one. [389] of plaintiff’s witnesses, who was on the opposite sidewalk, says he saw defendant’s car coming when it was 125 to 150 feet east of plaintiff. If so, why did not the plaintiff see it? If it could be argued that the defendant ought to have seen plaintiff in this place where pedestrians were not expected to be, how can the plaintiff be excused from seeing the automobile where west-bound traffic would be expected to be. If a jury could find that defendant should have seen the plaintiff and avoided hitting him, it must likewise find that the plaintiff should have seen the defendant’s car and avoided being hit. The judgment should be reversed and the complaint dismissed, with costs. Van Kirk, Acting P. J., and Hinman, J., concur; Davis, J., dissents, with an opinion in which Whitmyer, J., concurs.