Opinion
December 7, 1917.
Alfred T. Davison, for the appellant.
Jacob Zelenko, for the respondents.
Harry Goldstein, the intestate, was a man forty-seven years of age. He was crossing Third avenue between St. Paul's place and One Hundred and Seventieth street, in the borough of The Bronx, and was crossing in the middle of the block. The day was windy, and there was no one else on the street at eleven o'clock in the morning. He was struck by the defendant's car and killed. The claimed negligence is in the speed of the car and in the failure to sound a warning.
The judgment is wrong, both as to the defendant's negligence and as to the contributory negligence of plaintiffs' intestate. The physical facts are such that if the decedent had looked he would have seen this car approaching, as it was very near to him, and if he had seen the car approaching he had no right to experiment to see whether he could get over before the car reached him, that is, when the car was approaching so near that in his ordinary walk across the street he would be struck. There is some testimony that he looked up and down the track before he crossed. If this be true, then he saw the car approaching, and was guilty of negligence in attempting to cross when the car was so close upon him. The fact that he was struck demonstrates that the car was not far away when he crossed. Moreover, between streets these cars have the right to run with considerable rapidity, otherwise the traffic in the city would never be adjusted to the needs of the public. At crossings neither the car nor the pedestrian has a paramount right of way. Between crossings, the car has the right of way. ( Boyce v. New York City R. Co., 126 App. Div. 250.) The only evidence of failure to ring a gong was that certain persons did not hear it; nobody testified positively that it was not rung, while several persons on behalf of the defendant testified that the gong was rung right along down through that block. The mere fact that one is approaching a track from the side is not necessarily notice to the motorman that he is going to pass in front of the car.
I recommend, therefore, that the judgment and order be reversed, with costs, and complaint dismissed, with costs. The findings that defendant was negligent and plaintiffs' intestate was free from contributory negligence are reversed.
CLARKE, P.J., and and SCOTT, J., concurred; LAUGHLIN, and DOWLING, JJ., dissented from a dismissal of the complaint and voted for reversal and a new trial.
Judgment and order reversed, with costs, and complaint dismissed, with costs.