Ross v. Joline

GILDERSLEEVE, P. J. The evidence of plaintiff, supported by a disinterested witness, is that plaintiff was performing his duty as a flagman, when defendants’ car came along and struck him, and that no bell was rung, or any warning given, although the motorman saw plaintiff standing between the tracks and waving his flag, as it was his duty to do. The plaintiff had his back turned to the car. The motorman says: “I rang my bell, and went right ahead.” His evidence as to the ringing of the bell is flatly and positively contradicted by a disinterested witness, as above stated, who was standing close by the place of the accident, as well as by plaintiff. The justice gave judgment for the plaintiff for $500 and costs. This amount is not excessive, in view of the uncontradicted evidence as to the injuries. There is abundant evidence of the negligence of the defendant. As to contributory negligence, the rule in a case such as this is that if plaintiff uses some care the question is for the jury, but if he uses no care it is for the court, except under special circumstances. Burns v. Burns, 190 N. Y. 211, 82 N. E. 1107. Before turning his back to the; direction from which the car came, plaintiff had looked in that direction and had seen no car, although he could see along the track for about three blocks in that direction. He then turned in the other direction and waved his flag to keep a wagon from going into the excavation that he was guarding. It seems to me that under the evidence presented the question of contributory negligence was one of fact for the justice sitting ás a jury, and that his conclusion should not be disturbed. The judgment should be affirmed, with costs. DAYTON, J., concurs.