Golden v. Metropolitan Street R. Co.

Full title: JOHN J. GOLDEN, Respondent, v . THE METROPOLITAN STREET RAILWAY Co.…

Court: Supreme Court, Appellate Term

Date published: Feb 1, 1906

49 Misc. 521 (N.Y. App. Term 1906)

98 N.Y.S. 848

Opinion

February, 1906.

William E. Weaver, for appellant.

Frayer, Stotesbury Gregg, for respondent.

GREENBAUM, J.

Plaintiff claims damages for injuries sustained by his truck in a collision with one of defendant's cars.

The accident happened at the junction of Park row and Pearl street. Plaintiff was driving in an easterly direction through Pearl street and, as he reached Park row preparatory to crossing defendant's tracks, he claims he looked in a southerly direction to see if any car was approaching on the uptown track and that, although he could see for a distance of 200 feet down the track, he observed no car coming. He also claims that the wagon was struck in its middle, that is, midway between the first and rear wheels, by a northbound car and that he was thrown, by the impact, on the track in front of the colliding car.

It seems to be undisputed that the plaintiff's horse was swung around to the easterly side of the car, and defendant's motorman testifies that the wagon was struck at about the front wheel.

The mere fact that plaintiff testified that he looked in the direction of the approaching car and did not see it is not sufficient to absolve him from the charge of negligence.

It is improbable that, if he had looked, he would not have seen the car. It is also improbable that his wagon could have been struck, as he describes, and that he should have been thrown upon the track.

The consequences are rather in accord with the fact that he failed to look for a car and that his wagon was struck just as he reached the track.

The mere statement that the plaintiff looked is "in such contradiction of matters of common knowledge or the laws of nature, as to be incredible as a matter of law". Fiddler v. N YC. H.R.R.R. Co., 64 A.D. 95, 100; Swart v. N.Y.C. H.R.R.R. Co., 81 id. 402, 407; Hebron v. New York City R. Co., 94 N.Y.S. 341.

The judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

SCOTT and GIEGERICH, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.