Devine v. Metropolitan Street Railway Co.

MaoLean, J. This action was brought to recover damages for injuries to the person and property of the plaintiff, alleged to have been caused by the negligence of the defendant. In October, 1896, the plaintiff was driving a horse and cart, loaded with dirt, from Nineteenth street, near Sixth avenue, to the East river. When he reached Broadway, he saw a southbound car approaching, and stopped and waited until that car had passed. When that car had passed, he started on, and for the first time looked around. He was at that moment “ getting in on the downtown track ” when he saw a north-bound car, twenty to twenty-five feet away, approaching “kind of swift.” He put up his hand to the brakeman to stop the car, but all too late apparently to avoid a collision. Hpon his cross-examination the plaintiff said, “ I was going across the track behind a downtown car that went away and I was going in upon the other side when I noticed the [303] car coming up, and then I put up my hand then, there was another car going down at the same time, and I saw that I should go on because I could not get back. This car that hit me was going up. I was going easy; I had a heavy load. My horse was walking.” The gripman testified that he saw the plaintiff and his cart when it was twenty-five feet from the westerly comer of Broadway and Nineteenth street, and his car probably over fifty feet from the crossing; that the plaintiff pulled up for the downtown car to pass (and the plaintiff himself testified that he stopped to allow the downtown car to pass); that believing the plaintiff had come to a standstill, he continued on with his car; that when the downtown car had passed and when he next saw the horse the plaintiff came in behind the downtown car and was not more than ten or twelve feet away (and the plaintiff himself testified that he started on after the south-bound car had passed, and for the first time saw the approaching uptown car, as he says twenty to twenty-five feet away). At the close of the whole case, the counsel for the defendant moved for dismissal on the ground that the plaintiff had failed to prove negligence on the part of the defendant and its absence on his own part. The motion was denied and an exception taken. This was error. At the place where the accident happened, the rights and duties of the parties were equal and reciprocal. When the plaintiff stopped to allow the south-bound car to pass, he was apparently in a position of security, and where he acted in a way to indicate that he would so remain at least and until the car coming up had passed. Seemingly without the exercise of any care on his part — there is no evidence that he had even looked in either direction —■ he started on, and suddenly discovered that he was between two perils, a car approaching from the north and one from the south. Under the circumstances of this case no greater duty was imposed upon the defendant than was required of the plaintiff, and the necessary inference is that the plaintiff failed to acquit himself of contributory fault, so that it was error to deny a dismissal of the complaint. It should be held, therefore, as was said in McFarland v. Third Avenue R. R. Co., 29 Misc. Rep. 121: “ There was no testimony going to show that the car was going at an unusual or excessive rate of speed, nor that any of the employees in charge of the car saw the plaintiff in time to have stopped the car. “ The only carelessness that can be alleged against the defendant [304] is the fact that the gripman did not stop the car in time to avoid the collision. Such negligence must be predicated upon inference] as there is no direct testimony to that effect.” The judgment of the General Term of the City Court, affirming the judgment of its Trial Term entered upon a verdict, should be reversed and a new trial ordered. Ebeedman, P. J., concurring, on the ground that the evidence is insufficient to establish negligence on the part of the defendant. Leventbitt, J., taking no part. Judgment reversed and new trial ordered, with costs to appellant to abide event.