Uralsky v. Gribbon

Glennon, J. This action was brought by plaintiff to recover damages for personal injuries sustained as a result of being struck by defendant’s automobile. It was the contention of the plaintiff that the accident occurred solely as a result of defendant’s negligence. The defendant, on the other hand, insisted that he operated his automobile in a prudent manner, and that the accident was due to the fault of the plaintiff. The jury rendered a verdict in favor of defendant. After the main charge of the court was finished, the attorney for the defendant made the following request: “ Mr. Bruenner: Yes, I ask your Honor to charge the jury that if the jury find that this accident happened at a place other than the crosswalk, then the plaintiff has failed to sustain his burden of proof and the verdict must be for the defendant. The Court: So charged.” An appropriate exception was noted. This incident took place immediately before the jury retired. We believe in so charging, at defendant’s request, the court inadvertently fell into error. We know from experience that the crosswalk, so called, ordinarily has, in the city of New York, no lines of demarcation. If the accident occurred a few inches north or south of the place which has been designated as the crosswalk, then, under the ruling of the court, the plaintiff could have had no recovery even though the defendant was negligent in the operation of his automobile, and the plaintiff was free from contributory negligence. We do not believe that the case of Finnegan v. Mayer (200 App. Div. 855), in which it might be noted that two of the justices dissented, is controlling upon the point here involved. The dissenting opinion of Mr. Justice Greenbatjm in that case shows clearly that the factual situation there was entirely different from that in this case. While it is true that the plaintiff stated on cross-examination that the accident occurred on the crosswalk, and that immediately thereafter he was “ about 15 feet north from the crosswalk where I walk,” still he was not asked to define what he meant by the term “ crosswalk,” or what particular area of the roadway it covered. Plaintiff’s testimony should be read in connection with that of Bert Edward Phillips, a witness called in his behalf who said in part: “ Kingsbridge Road and Jerome Avenue is a very peculiar corner. The crosswalk is a good bit further on the east [535] side than it is on the west side.” It is fair to assume that what the witness meant was that the sidewalk on the north side of Kings-bridge road on the westerly corner was out of alignment with the sidewalk on the north side of Kingsbridge road on the easterly corner. Phillips was asked on cross-examination the following question: “You say that this accident happened 15 feet north of that crosswalk, don’t you? ” and his answer was: “ I did.” In other words, this witness fixed the scene of the accident as some few feet north of the place he designated as the crosswalk. There was one point, however, upon which the plaintiff and both his witnesses agreed, and that was that the defendant’s car, which was north-bound, struck the plaintiff while he was over on the south-bound side of the street. We have pointed out that under the law as charged pursuant to defendant’s request, if the defendant negligently drove his car on what is frequently called the wrong side of the street, plaintiff, although free from contributory negligence, still would not be entitled to recover from the defendant for the injuries he sustained. (See Barker v. Paulson, 116 N. Y. 660; reported in full, 22 N. E. 959.) Defendant urges that in any event the plaintiff was guilty of contributory negligence as a matter of law. There is no substance to bhat point. Plaintiff testified: “ I looked south before I started crossing the roadway. * * * After I passed the center of the road, I looked north.” In answer to a question on cross-examination which referred to the north-bound traffic he said that the first car in the fine was half a block away. He was asked, “ How many feet do you say the first car in this line of cars was from you, how many feet was it? A. 20, 25 feet, maybe 30 feet. Half a block, anyway. I cannot measure. Half a block is maybe 50 feet away. I am sorry I cannot tell you exactly how many feet, because I never measured it.” -The testimony adduced bn behalf of plaintiff was that defendant’s car, which was second in line, attempted to pass the first car, and in that way plaintiff received his injuries after he was on the west side of Jerome avenue. In Knapp v. Barrett (216 N. Y. 226, 230) Judge Cardozo said: “ A wayfarer is not at liberty to close his eyes in crossing a city street. His duty is to use his eyes, and thus protect himself from danger (Barker v. Savage, 45 N. Y. 191). The law does not say' how often he must look, or precisely how far, or when or from where. If, for example, he looks as he starts to cross, and the way seems clear, he is not bound as a matter of law to look again. The law does not even say that because he sees a wagon approaching, he must stop till it has passed. He may go forward unless it is [536] close upon him; and whether he is negligent in going forward, will be a question for the jury. If he has used his eyes, and has miscalculated the danger, he may still be free from fault (Buhrens v. Dry Dock, E. B. & B. R. R. Co., 53 Hun, 571; 125 N. Y. 702).” If we apply, as we must, that principle of law to the facts in this case we reach the conclusion that the questions of fact were properly submitted to the jury. We believe that the error in the charge was substantial and requires that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event. Townley and Untermyer, JJ., concur; Finch, P. J., and Merrell, J., dissent and vote for affirmance.