Ashley v. Joline

PLATZEK, J. The plaintiff, on a bright clear morning in May, 1910, was proceeding along the uptown side of Sixty-First street, going west towards Columbus avenue. As she 'was at the curb, she [4] saw two cars approaching, one from uptown, which was in the block between Sixty-First and Sixty-Second streets, nearer Sixty-First street. The car coming uptown was between Sixtieth and Sixty-First streets, nearer Sixtieth street. The plaintiff walked along until she reached the outer edge of the uptown car track, when she stopped, and then stepped back to allow the downtown car to pass her. After it passed, she again stepped ahead to cross the uptown track, when she was hit by the uptown car, receiving injuries for which she recovered damages in this action. She testifies that after she first saw the approaching uptown car, then near Sixtieth street and she then being near the curb, she did not again look for that car, and did nothing to ascertain its position, and did not hear or see it until she was struck by it. Her testimony is that she was struck just as she was about to step upon the uptown track the second time. There was nothing to prevent her from seeing the car if she had looked, and under such circumstances she has not shown herself free from contributory negligence, and the verdict of the. jury should have been set aside upon defendant’s motion. Judgment reversed, a’nd new trial ordered, with costs to appellants to abide the event. GUY, J., concurs.