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Friedman v. Dry-Dock, E. B. & B. R. Co.
Bischoff, J. This action was brought to recover damages suffered by the death of plaintiff’s intestate alleged to have been caused by the carelessness •or negl grace of the defendant’s driver in the management of one of its cars.
The facts relied upon for such recovery, briefly stated, are as follows: On January 25,1881, between about 6 o’clock and 7 o’clock in the evening, plaintiff’s intestate, a man about 67 years of age, and who was in vigorous health, •excepting the usual feebleness accompanying advanced years, attempted to cross Grand street, in the neighborhood of Goerick street, from the north side to the south side.
At this point on Grand street there were three separate tracks used in the operation of horse ears, and between the southern track, and the curb on the south side of Grand street, there was at the time a snowbank between 2 and 3 feet high, and about 15 feet in length. When plaintiff’s intestate was attempting to cross, one of defendant’s cars was approaching on a down grade from the west, and in an easterly direction, at an unusually rapid rate of speed.
It was a cold and clear night, and the car was plainly visible at a distance of 100 feet or more, and, excepting the snowbank and car mentioned, there was nothing to obstruct either view or passage. Plaintiff’s intestate had reached the southern track upon which defendant’s car was approaching, and when it was within 10 or 15 feet of him, he called to it to stop, and proceeded to cross the track.
Having crossed the track he attempted to wade through, or leap over, the snow-bank, and, in so'doing, fell between the latter and the ear, and in that way sustained the injuries of which he died four days later. Upon this state of facts, the case is no longer •open for original consideration by this court.
The first trial ended in the dismissal of the complaint, and upon appeal to the general term the action of the trial judge was sustained; Mr. Justice Van Hoesen, however, dissenting from the opinion of his associates, and writing an opinion for reversal. Freidman v. Railroad, Co., 3 N. Y. St. Rep. 557.
The learned justice, writing the 431 -dissenting opinion, held that it was not contributory negligence as matter of law for plaintiff’s intestate to proceed to cross the track, and to attempt to wade through or leap over the snow-bank, upon seeing the approaching car, And that whether or not the plaintiff’s intestate was himself negligent was an inference to be drawn from the facts, and that the facts would sustain a finding to the effect that he was not negligent.
The dissenting justice also held that the testimony would sustain a finding of negligence on the part of the defendant, resulting in the injuries to plaintiff’s intestate. These views were Adopted by the court of appeals, and the j udgment was reversed, and a new trial ordered. Friedman v. Railroad Co., 110 N. Y. 676, 18 N. E. Rep. 482. . Upon the second trial, at which the judgment now appealed fro'm was rendered, Messrs.
Skill man and Roll were the chief witnesses on whose testimony the plaintiff relied to make out her case. This testimony I have carefully compared with the facts as shown in the dissenting opinion of Mr. Justice Van Hoesen, and there does not appear to me to be any appreciable variance between the alleged facts as testified to by the witnesses named, and the facts mentioned in such opinion.
This court is bound, therefore, to accept the views of the court of appeals, and, under the circumstances, it was error for the learned judge presiding at the second trial to withdraw the consideration of the question of defendant’s negligence, and the plaintiff’s intestate’s -contributory negligence, from the jury. The judgment should be reversed, and a new trial ordered, with costs to abide the event.