Greitz v. Linch

GUY, J. The action was brought to recover damages resulting to plaintiff from a collision between a wagon driven by plaintiff and a car operated by an employé of the defendant. Plaintiff testified that on October 29, 1912, between 6:15 and 6:45 p. m., he slowly drove his wagon across defendant’s car tracks at Nineteenth street and Second avenue from the westerly to the easterly side; that, when he was within a few feet of the track, he saw defendant’s car about 100 to 150 feet north of Twentieth street; that he again saw the car as he was about to go upon the track, and the car at that time was just below the crossing of Twentieth street; that he heard the car rapidly approaching and endeavored to get his whip out in order to urge his horses to a faster gait, but did not have time to do so before the rear end of his wagon was struck; that his horses were at that time going at a speed of about four miles an hour, tie also" testified that the car did not stop at Twentieth street. Defendant produced several witnesses who testified that the car did stop at Twentieth street, and that plaintiff did not attempt to cross the track until defendant’s car was only a few feet (from 6 to 45, according to the various witnesses) from the place where plaintiff endeavored to cross the track. [1, 2] It is extremely questionable whether, on all the evidence, the verdict could be sustained; the preponderance of evidence seeming to be in favor of the defendant. It is not necessary, however, [547] to consider the question of the weight of evidence herein for the reason of errors in the refusal of the learned court to charge requests made by defendant’s counsel. Defendant’s first request was that the court charge the jury: “That if they believe that the motorman did all that a reasonably prudent motorman could do under the circumstances, after it became apparent that the plaintiff was about to cross his track in order to stop his car, then they should find a verdict for the defendant.” This refusal to so charge was reversible error. Again, defendant’s counsel asked the court to charge the jury: “That if they find the street car was moving fast and was 10 feet away from the plaintiff when the plaintiff attempted to drive his horses across the track in front of the car, then their verdict must be for the defendant.” The refusal to so charge, as requested, was' reversible error. It is well established that an attempt to cross a car track at a short distance in front of a rapidly approaching car is contributory negligence, as matter of law. See Lynch v. Third Ave. R. R. Co., 88 App. Div. 604, 85 N. Y. Supp. 180; Hamilton v. Third Ave. R. R. Co., 6 Misc. Rep. 382, 26 N. Y. Supp. 754; Freeman v. Brooklyn Hts. R. R. Co., 82 App. Div. 521, 81 N. Y. Supp. 828. The judgment must therefore be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.