Lahne v. Seaich

PATTERSON, J. This is an action to recover damages for personal injuries sustained by the plaintiff, who was run over by a cab driven by one of the defendant’s servants. On the trial, the plaintiff had a verdict, from the judgment entered upon which, and from an order denying a motion for a new trial, the defendant appeals. The evidence given on behalf of the plaintiff, and which prevailed with the jury, clearly established the negligence of the defendant’s servant in driving the cab. It was shown that the plaintiff at about 8 o’clock on the evening of December 31, 1899, was standing, with a companion (who died before the trial), at the curb at the' southwest corner of Fifth avenue and Fifty-Third street, in the city of New York, intending to cross to the easterly side of the avenue. There were cabs going south, which passed the plaintiff, and there were two cabs going north, one of which was driven by a servant of the defendant. The cabs proceeding northward were going at a very rapid rate of speed. It was a clear, moonlight night; and one of the witnesses for the plaintiff (Mr. Rhoades) was able to see the cabs moving northerly after they had proceeded a block beyond him. This witness was walking on the westerly side of the avenue, and saw the two cabs which passed him apparently racing, and observed that one, identified as being driven by the defendant’s servant, swerved to the left; and it is not denied that the plaintiff was struck and injured by that cab. It fully appears that the turning to the left of that cab caused its contact with the plaintiff. The issue of fact in the case was whether the plaintiff negligently walked into, and was struck by, the cab, or the horse drawing it, or whether she was struck by the driver negligently proceeding at this rapid rate of speed and turning out to the left. The theory of the defendant was that the act of the driver in thus turning out was to avoid contact with the plaintiff, while, on the other hand, that of the plaintiff was that, had the driver proceeded in a straight line, or had he performed the duty which the law imposed upon him, of careful driving and looking out for persons crossing the street, contact with the plaintiff would have been avoided. • ■ ■ / --- -'<!■■■■' --hi The jury were entitled to believe, as they did, that the driver, of the defendant’s cab was proceeding at a very rapid rate of speed, and without regard to the safety of persons crossing the street, and that the plaintiff was carefully crossing it. According to the testimony of witnesses, the speed of the two cabs going northward was at a rate between 6 or 7 and 15 miles an hour. The duty of a driver in a city street, with respect to pedestrians crossing the street, is plain. In Murphy v. Orr, 96 N. Y. 14, it is held that one driving horses along the streets of a city is bound to anticipate that pedestrians may be at a crossing, and must take reasonable care not to injure [69] them. If he fails to look out for them, or when he has seen them, and does not, so far as is in his power, avoid them, he is chargeable with negligence. In Moebus v. Herrmann, 108 N. Y. 349, 15 N. E. 415, 2 Am. St. Rep. 440, it is held that a person on foot, desiring to cross a city street, has a right to cross, not only at the cross-walk, but wherever he pleases, and one driving horses upon the street is bound to be watchful at all points, as well as at the crossings, so as not to injure persons crossing. Here the defendant’s servant was driving impetuously, as the jury had the right to infer. The speed was so great as of itself to show negligence in approaching a crosswalk. The night was clear. By care and attention, he could have seen the plaintiff. He swears that the plaintiff came quickly and suddenly, but there appears to be no doubt that it was the rapid rate of speed, and the driver’s disregard of his duty to anticipate that passengers might be crossing the street, in connection with his sudden turning out to the left, that constituted his negligence. The judgment and order appealed from should be affirmed, with costs. INGRAHAM J., concurs. Footnotes [¶] 1. See Highways, vol. 25, Cent. Dig. §§ 464. 466: Municipal Corporations, vol. 36, Cent. Dig. § 1515.