Opinion
Argued January 11, 1923
Decided January 23, 1923
William J. Flynn and Hamilton Ward for appellant.
Olin T. Nye for respondent.
The defendant is a railway corporation operating trolley cars through Forest avenue in the city of Buffalo. The plaintiff was a police officer in that city. About nine o'clock in the evening of November 25, 1919, the plaintiff noticed an automobile coming on Forest avenue in a westerly direction without any headlights. This was in violation of the law. The officer called to the driver of the automobile to stop. The automobile came to a stop on the track with the right-hand wheels between the rail and the sidewalk. The officer went over to the automobile to talk with the driver about the lights and to get the number of the car. His own story of the occurrence, in view of the dismissal of his case, might well be quoted at this point, as it is not very long: "As near as I can guess, about nine o'clock I had the beat on Forest avenue, and on the northwest corner of Forest and Hawley street I saw an automobile coming with the two headlights out. I walked out towards the curb and put up my hand for him to stop the automobile. * * * He stopped within ten or fifteen feet after he passed me. * * * I went up to the front of the car, I said: `Your lights are not lit.' * * * He got out and explained to me the difference in the circuits. We came around and looked at the back. He said his tail light was lit, and it was. * * * We were standing about a foot and a half from the rear of the car, towards the north side, looking at the southeast corner from the rear of the car, that I could see his rear number. I had a book and pencil and was taking the number, and without any warning at all the street car came down and hit the two of us."
The motorman of the car was not looking where he was going but was winding up the sign overhead just before and at the time he struck the machine and the plaintiff. The trolley did not slacken its speed and went a distance of about thirty feet after the collision. The plaintiff was corroborated by other witnesses, one of whom said that the policeman and the automobile were standing in the street for only a minute before the car crashed into them.
The trial justice dismissed the complaint. He said: "The car is not obliged to stop because something is ahead on the track. He has a right to go along, he was going at a moderate speed." We do not agree with this. The motorman was bound to keep his eyes open, not only because of the duty he owed his passengers, but the duty he owed to pedestrians and those whose work took them into the street. If he saw something ahead of him on the track, which would indicate to a reasonably prudent man that there was danger or that it would not get off the track before the car reached it, his duty was to slow up and stop his car if possible. He had to exercise reasonable care even to those whom he could see or should have seen were in a position of danger. ( Bragg v. Central New England Ry. Company, 228 N.Y. 54; Mintz v. International Ry. Company, 227 N.Y. 197; Feldman v. New York Central H.R.R.R. Co., 142 App. Div. 339; affd., 205 N.Y. at page 553.) It was also the duty of the police officer to exercise reasonable care to look out for himself, but whether he did or not, in view of the facts of this case, was a question for the jury. The police officer had a duty to perform and this duty called him from the sidewalk into the street. It was part of his work to see that laws and ordinances were obeyed. He did the right thing when he stopped the automobile and told the driver that his front lights were out. Driving through the city streets without lights at nine o'clock at night was extremely dangerous. A serious accident might reasonably be anticipated from such recklessness. It was also the duty of the police officer to take the number of the car and to make a report of the case if the circumstances, in his opinion, justified it. Whether the plaintiff in performing these duties and standing by the car at or near the car tracks exercised the care of a reasonably prudent man under the circumstances was a question for the jury. His business was not unlike that of the street sweepers, firemen and others who have a special duty to perform in the streets of our cities. ( Xenodochius v. Fifth Avenue Coach Company, 129 App. Div. 26; Reilly v. Interurban St. Ry. Co., 108 App. Div. 254; Bengivenga v. Bklyn. Hts. R.R. Co., 48 App. Div. 515.)
For these reasons we think that the judgment of the Appellate Division should be reversed and this case sent back for a new trial, with costs to abide the event.
HISCOCK, Ch. J., HOGAN, CARDOZO, POUND, McLAUGHLIN and ANDREWS, JJ., concur.
Judgments reversed, etc.