Miller v. New York Taxicab Co.

GIEGERICH, J. The plaintiff was run down by an automobile of the defendant company on Second avenue, at its intersection with East Fifty-Fourth street, in the borough of Manhattan, city of New York and brings this action to recover damages for injuries so received. Her complaint was dismissed at the close of her case. It appears from her own testimony and that of several other witnesses that the accident occurred as the plaintiff and her companions were crossing Second avenue on the northerly crosswalk from east to west and as the plaintiff was between the westerly car tracks. The plaintiff and all the other witnesses, who were crossing the avenue together, tes [900] tified that they looked both up and down the avenue before they went upon the tracks, but saw no car or automobile. Each of them denied having seen the automobile until the moment of the collision. From this testimony plaintiff was entitled to go to the jury. Her case was that, being upon the crosswalk, where she had an equal right with the defendant (Barker v. Savage, 45 N. Y. 191, 6 Am. Rep. 66; Young v. Herrmann, 119 App. Div. 445, 104 N. Y. Supp. 72), and exercising due care, she was struck by an automobile which none of the witnesses had seen until the- moment of the collision, although they had taken particular pains to look for it. This state of facts is conceivable, and made out a prima facie case of negligence against the defendant, and of freedom from contributory negligence on the part of the plaintiff. Whether or not the testimony was credible was for the jury to say in the first instance. The judge could set their verdict aside if he was dissatisfied with it, but he could not dismiss the complaint when the evidence on its face made out a case for the plaintiff. Colt v. Sixth Ave. R. R. Co., 49 N. Y. 671; Place v. N. Y. C. & H. R. R. R. Co., 167 N. Y. 345, 60 N. E. 634; Lewis v. Erie R. R. Co., 105 App. Div. 292, 94 N. Y. Supp. 765; Reilly v. Troy Brick Company, 184 N. Y. 399, 77 N. E. 385. The judgment should therefore be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.