Opinion
February, 1900.
Goldschmidt Falk, for appellant.
Henry A. Robinson (Don R. Almy, of counsel), for respondent.
This action was brought to recover damages for personal injuries said to have been caused by the negligence of the defendant. At the close of the plaintiff's case a motion was made to dismiss the complaint, which motion was granted, on the ground that there was not sufficient evidence to show that the plaintiff was free from negligence which contributed to the injury complained of. In reviewing this ruling the evidence offered by the plaintiff must be taken to be true, and all inferences of fact which may be reasonably drawn therefrom in favor of the plaintiff must be indulged in.
It appears that the plaintiff was a truckman, and just prior to the accident had business which took him to Eighth avenue, between One Hundred and Nineteenth and One Hundred and Twentieth streets. Having transacted his business, he and his helper got on the truck, and proceeded to drive across the avenue in a westerly direction. When he started he saw a car of the defendant on the northbound track, near One Hundred and Nineteenth street, and at a point about one hundred feet away. At that time the car was not in motion. He immediately started his horses to go across the avenue, and had reached a point where the horses had cleared the northbound track when the car came into collision with the truck, throwing him down and causing the injuries complained of. He says that he did not see the car after he had started his horses across the track. It also appears that he had a lantern placed in the front of the truck in such a position as to throw the light forward in the direction of the horses. Whether this light was in such a position as to be visible to the motorman of the approaching car does not appear.
We do not think that under such circumstances it can be held as matter of law that there was no evidence from which it could properly be inferred that the plaintiff was free from contributory negligence. It cannot be said, considering the distance of the car at the time that the plaintiff started to cross, that it was not reasonable for him to expect to make the crossing in safety. Under such circumstances it was for the jury and not for the court to determine the fact, and the trial justice, therefore, erred in dismissing the complaint as he did on the ground assigned for his action. It follows from what has been said that the judgment must be reversed.
Present: BEEKMAN, P.J., GIEGERICH and O'GORMAN, JJ.
Judgment reversed and new trial ordered, with costs to appellant to abide event.