Viele v. Snyder

Hickey, J. Plaintiff was driving an automobile northerly on Eleventh street in the city of Niagara Falls. Defendants were driving a car easterly on Cleveland avenue, an intersecting street. Plaintiff testified that he slowed up as he approached this intersection. He does not claim, however, to have looked for vehicles that might be approaching on the intersecting street and testified that he saw nothing of defendants’ car until the collision occurred. It was broad daylight when the accident occurred. The case was submitted to the jury for their consideration and a verdict found in plaintiff’s favor. Defendants now move for a new trial on the ground that plaintiff was chargeable with contributory negligence as a matter of law, in not looking as he approached and was crossing the intersecting street. The motion must be granted. I believe it is well settled that to cross a railroad or trolley track without looking amounts to contributory negligence as a matter of law. No New York case, however, has been called to my attention which applies this rule to automobiles when crossing an intersecting street. I see no reason, however, why the rule should not apply. Each side has called my attention to the case of Farrell v. Fire Insurance Salvage Corps (189 App. Div. 795), and each side claims it as an authority in Ms favor. It does not decide the point involved here. There the plaintiff testified that he did look for approaching veMcles as he approached the intersection. That testimony was sufficient to carry the case to the jury. Here the plaintiff does not even claim to have looked as he approached the intersection. I, therefore, hold that he is chargeable with contributory negligence as a matter of law, and defendants’ motion to set aside the verdict and for a new trial is granted.