Shanley v. Monarch Coffee Co.

Jones, J. Appellant’s counsel urge three assignments of error: (1) that judgment should have been directed for defendant; (2) that the question of contributory negligence should have been submitted to the jury; (3) that the damages were excessive. We shall discuss only the second assignment. The evidence presented to the court and jury two widely different theories. It was contended by plaintiff’s counsel that immediately after she had'Stepped from the north curbing of Walker street and Eleventh avenue she was struck by a swiftly driven car which had cut the corner. [233] It was the testimony of defendant’s witness, the driver of the car, that when the accident happened the plaintiff was considerably nearer the center of Walker street; that the car. was going at the rate of ten miles an hour when it skidded as detailed in the statement of facts, and the driver could not prevent the collision. It is argued by appellant’s counsel that since plaintiff testified that she looked only to the north and east she was negligent; that even if the car cut the corner she could have seen it in time to avoid the accident by looking to the north; that if the car took the direction claimed by defendant she could have seen and avoided the accident by looking to the south. If the question had been submitted there was evidence from which the jury might have found contributory negligence on the part of plaintiff. It is true they might have disbelieved the' testimony of defendant’s witness and the result might have been the same, but the subject of his credibility was quite as much within their province as the credibility of the plaintiff. It is unnecessary to cite the many decisions of this court which hold that where the testimony is conflicting the question of contributory negligence is peculiarly a question for the jury. We must hold that the refusal to submit the question proposed was prejudicial error. By the Court. — Judgment reversed, and cause remanded for a new trial.