McQuade v. Metropolitan Street Railway Co.

McAdam, J. The action is to recover for personal injuries sustained by the plaintiff on January 4,1896, while waiting in an easterly direction on the southerly crosswalk at Lexington avenue and ■Fifty-second street in this city. She had crossed the westerly track of the defendant’s cable road, was struck by one of its cars going north on the easterly track and thrown down Upon her knees, receiving the injuries of which she complains. The plaintiff’s testimony was to the effect that the street was prefectly clear as far as she could see; that she did not see any car .coming; and the first thing she knew she was struck and knocked down.- The accident occurred at about 9 p. m. It was a cold night, and some of the witnesses swear that the plaintiff was carrying a parcel, and that she was “ bundled up,” meaning that her head Was covered to protect her from the weather, a circumstance which might have interfered with her sense of hearing. According to the testimony of the gripman and of the conductor she struck about the middle of the car. The gripman positively testifies that the platform of the car had passed her, and this is highly probable,judging from the nature of her- injuries ánd the fact that she fell toward the westerly track. So that instead of the car running into plaintiff, she 'unconsciously ran into the car. When interrogated particularly as to what portion of the car struck her she testified, “the front of the car; ” and when asked what part of the front, said, “ I could not tell, because I was struck before I knew it.” The latter statement is undoubtedly the correct one. This testimony fails to establish either negligence on the part of the defendant, Or freedom from fault on the part of the plaintiff. The front of the car having passed her, it was the plaintiff’s duty to stop on the crosswalk until the car passed. The gripman' had the right to assume that she would exercise this care, because ordinary prudence commands it. It is not an uncommon thing for a • pedestrian seeing a car approach to advance to the middle of the street and cross as soon as the car has passed. Indeed it is difficult at times to cross certain of our crowded thoroughfares in any other way, owing to the presence of many passing vehicles in the roadway. The plaintiff’s counsel lays stress upon the fact that his client did not hear the gripman’s gong. There is no statute requiring the [156] ringing of a gong; yet if the exercise of proper care in the management of the.car in a particular instance requires some warning to he given, it is negligence not to give it. Byrne v. R. R. Co., 104 N. Y. 362; 10 N. E. Repr. 539. But the failure to sound the gong did not relieve the plaintiff from the exercise of proper care in.crossing the tracks. Krauss v. R. R. Co., 69 Hun, 482; Cullen v. D. & H. C. Co., 113 N. Y. 667. In Omslaer v. Traction Co., 168 Penn. St. 521, the court said: “ The rule of-/stop, look and listen’ before attempting to cross the tracks of a steam railroad is inflexible, and nonobservance of it is negligence per se. So much' of this rule as requires a person .about to cross the tracks of a steam railroad to ‘ look .and listen ’ to discover whether a train is approaching is applicable to the crossing of a street railway operated by cable or electricity.” In answer to the plaintiff’s claim that she looked and did not see ■the car approach, the language of the court in Burke v. R. R. Co., 73 Hun, 35, is significantly applicable, for it is there said: “If a person looks she is supposed to look for the purpose of seeing, and if an object is in plain sight and'she apparently looks, but does not see it, it is manifest she ¿oes not do what she appears to do, and has not. complied with the rules of law.” To the same effect see Holden v. Penn. R. R. Co., 169 Penn. St. 11. - In order to recover the plaintiff was bound to prove affirmatively not only that the injuries were caused by the negligence of the defendant, but that she did not in any manner contribute thereto. Mahon v. Burns, 13 Misc. Rep. 19; Weston v. City of Troy, 139 N. Y. 282. She utterly failed to establish these essentials to a recovery, and for this reason the judgment appealed.from must be reversed and a new trial ordered, with costs to the appellant to abide the event. . - • . Daly, P. J., and Bischoff, J., concur. Judgment reversed and new trial ordered, with costs to appellant to abide event. '• -