Opinion
January 26, 1906.
Bayard H. Ames, for the appellant.
Charles M. Parsons, for the respondent.
This action was brought to recover damages for personal injuries received by the plaintiff through the alleged negligence of the defendant's servants. After the plaintiff had rested, defendant moved to dismiss the complaint upon the ground that his evidence failed to establish that he was free from contributory negligence, and also that he failed to show that his injuries were caused by defendant's negligence. This was denied and an exception taken and then defendant, without offering any evidence, rested and renewed the former motion to dismiss, which was also denied and an exception taken. Plaintiff had a verdict and from the judgment entered thereon and an order denying a motion for a new trial defendant appeals.
I am of the opinion the complaint should have been dismissed and that the exceptions taken to the refusal of the court to make such disposition of the case were well taken.
The undisputed facts show that the plaintiff was guilty of contributory negligence and had he exercised the care which the law imposed upon him the accident would have been avoided. The defendant operated two lines of cars on Eighth avenue, one going in a northerly direction on the easterly and the other in a southerly direction on the westerly side of the avenue. About eleven o'clock in the forenoon of the 28th of February, 1902, plaintiff attempted to cross from the easterly to the westerly side of the avenue, a little south of the south crosswalk at One Hundred and Thirty-second street, and in doing so was struck by a south-board car, sustaining the injuries of which he complains. Immediately before or while crossing the avenue he saw a car approaching from the south and also one from the north. According to his testimony he paid no attention to the south-bound car after he saw it, but walked in front of it and was struck just as he had taken or was about to take the second step on the track on which that car was running. This car, when he saw it, was a little above the north crossing of One Hundred and Thirty-second street, which, according to the testimony of his witness Cohen, was only forty or fifty feet from the place where the accident occurred, and when he stepped upon the track only five or six feet from him. There was nothing to obstruct his view. He could have seen the car had he looked. Nor was there anything to distract his attention except the car going in a northerly direction. He knew a car was approaching from the north as well as from the south and it was his duty to avoid, if possible, a collision with either of them, and had he paid the slightest attention to the south-bound car he would not have been struck by it.
The testimony of the plaintiff, as well as the testimony of his witnesses bearing upon his movements from the time he left the sidewalk until he was struck by the car, shows that he paid no attention to the car approaching from the north, but carelessly and heedlessly stepped directly in front of it.
It may be conceded that there was sufficient evidence to go to the jury upon the defendant's negligence, but if such concession be made it does not aid the plaintiff because even though the defendant were negligent plaintiff could not recover unless he himself were free from negligence, and his own evidence showed that he was not. He, therefore, failed to meet the burden which rested upon him of showing such fact and the complaint should have been dismissed. ( Lynch v. Third Avenue R.R. Co., 88 App. Div. 604; Jackson v. Union Railway Co., 77 id. 161; Greene v. Metropolitan Street R. Co., 100 id. 303; Knapp v. Metropolitan Street R. Co., 103 id. 252.)
Whether or not a bell was rung or notice given of the approach of the car is of no importance, because the plaintiff saw the car and knew it was approaching.
Nor had he a right to assume that the car would be so controlled as to enable him to cross the tracks in safety. He had no more right to assume this than the motorman had to assume that he would so regulate his own movements as to prevent being struck by the car. ( Little v. Third Avenue R.R. Co., 83 App. Div. 330; affd., 178 N.Y. 591.)
The judgment and order appealed from, therefore, must be reversed and a new trial ordered, with costs to appellant to abide the event.
O'BRIEN, P.J., INGRAHAM, LAUGHLIN and HOUGHTON, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.