Rothfeld v. Clerkin

Shearn, J. It is contended that the plaintiff, an elderly woman who was knocked down by a heavy motor truck at a street crossing, was guilty of contributory negligence as a matter of law and that the [193] complaint should have been dismissed at the conclusion of plaintiff’s case. Plaintiff, at midday, accompanied by her nine-year-old daughter, was walking east on Delancey street in the borough of Manhattan and came to Allen street, which runs north and south. It was necessary for her to cross Allen street to reach her destination. At the northwest corner of Delancey and Allen streets, plaintiff testified that she looked uptown and saw defendant’s motor truck coming downtown “ fast;” that she proceeded to cross and when she had walked out two or three steps from the curb she was struck and knocked down. The other testimony in'behalf of the plaintiff was to the same effect. Of course it might well have been found by a jury that the plaintiff in attempting to cross the street, even at a regular crossing, when a motor truck, going “ fast,” was approaching at a distance of only two houses, say fifty feet, away, was guilty of contributory negligence as a matter of fact. But the question is whether the plaintiff was guilty of contributory negligence as a matter of law. It has been very pointedly stated by the Court of Appeals, and I think it is generally understood by the bar, that in these street crossing cases the question of the pedestrian’s contributory negligence is generally one of fact. Of course there are certain extreme cases. where a pedestrian steps directly in front of a vehicle and in effect runs into it, in which the court is justified in determining the question of the pedestrian’s negligence as a matter of law. These cases, however, are rare. The rule governing the obligation of pedestrians in crossing city streets was recently stated by Judge Cardozo in the case of Knapp v. Barrett, 216 N. Y. 226, 230, as follows: “A wayfarer is not at liberty to close his eyes in crossing a city street. His duty is to use his eyes, [194] 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 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.” It is carefully calculated in the dissenting opinion that if the motor truck was traveling at the rate of twelve miles an hour, that would be over seventeen feet a second, and that means that the motor truck would have traversed the fifty feet in three seconds, making a collision inevitable. Passing the point that there is nothing upon which to base the assumption that the speed of the truck, was twelve miles an hour, this line of reasoning assumes that this elderly woman would have made or should have made these or similar elaborate ealculations if she had been prudent and that she recklessly invited the collision. It is one thing for an appellate court, long after the event, and remote from the scene, to make these calculations and thus measure the likelihood of a collision, and quite another thing for the pedestrian, under the actual circumstances of a given case, to measure the danger with the aid only of experience and individual judgment. Many elements enter into the question of good or bad judgment under the circumstances of such a case. Even if the pedestrian is able to make these mathematical calculations involving speed, time and distance, the pedestrian is also permitted to take into consideration the fact that motor vehicles, even if [195] going “ fast,” can be very quickly stopped; and also that it is the duty of drivers of motor vehicles approaching street crossings to have their vehicles under reasonable control, and that they must, if possible, avoid running down pedestrians who are in plain view and rightfully on the crossing. When a motor truck is fifty feet above a street crossing at the moment a pedestrian sets out to cross the street in broad daylight, I cannot see any justification for treating the question of contributory negligence as one of law instead of fact. Treating the question as one of fact, the reco'rd discloses no reason why the jury’s finding should be set aside, either on the issue of contributory negligence or of the ' defendant’s negligence. This brings us to the question whether, accepting the version testified to by the plaintiff and her witnesses, there is any evidence of negligence on the part of the defendant. I agree that no cause of action is established by mere testimony that the motor truck was going “ fast,” and it would seem unnecessary to state that this is not a case where the doctrine of res ipsa loquitur applies. The complaint is not based upon any allegation of illegal or excessive speed, but upon a careless operation and management of the motor truck and failure to keep it under reasonable control as it approached a street crossing. The theory and claim of plaintiff is that, although she was in plain view and manifested her intention of crossing when the truck was fifty feet away, it kept right on and knocked her down. Keeping in mind the obligation of the truck driver to have his truck under reasonable control as he approached the crossing and his duty to avoid unnecessarily running down persons lawfully on the crossing, where the proof shows the width of the street and the distance of the truck from [196] the crossing when plaintiff started across, and thus shows the opportunity that was open to the truck driver to avoid running plaintiff down, an entirely sufficient legal basis is laid for the inference of negligence consisting of the omission or neglect to perform the obligation above stated. Judgment affirmed, with twenty-five dollars costs. Guy, J., concurs.