Opinion
December, 1903.
H.F. Ives, for the appellant.
Walter G. Rooney, for the respondent.
The plaintiff was injured on the night of February 26, 1902, while crossing Nostrand avenue in the borough of Brooklyn, on the south side of De Kalb avenue. He had just crossed from the northeast to the southwest corner of the two avenues for the purpose of taking a De Kalb avenue car going eastwardly. The car had, however, started eastwardly across Nostrand avenue, and the conductor called to him to "come on" to the east Nostrand avenue crossing. As he was crossing Nostrand avenue, about abreast of the rear of the De Kalb avenue car, and while on the first or southerly-bound track of the Nostrand avenue line, operated by the defendant, a car of that line shot rapidly over the crossing, and, striking the plaintiff, inflicted personal injuries, for which he has recovered.
The defendant offered no evidence in defense, but insists on the appeal that the complaint should have been dismissed for the plaintiff's assumed failure to establish freedom from contributory negligence. It is true that the plaintiff did not testify that he looked for a car from the north before stopping on the Nostrand avenue track, but he distinctly testified that he could not see the car until it struck him, because his vision was obstructed by the intervening De Kalb avenue car. The situation was, therefore, within the line of authorities which absolve the pedestrian from the exercise of a caution which would necessarily be futile in results, and is distinguishable from the situation presented in the cases cited by the appellant, where a glance would have disclosed the peril. There is no question but that the Nostrand avenue car was run over the crossing in this instance at a very high rate of speed, and without regard to the rule of diligence which requires care to be taken at such a place to keep the car well under control, and upon which rule travelers are certainly entitled to rely to some extent. In view of all the circumstances, it seems clear that the case was properly disposed of, and the judgment should be affirmed.
BARTLETT, WOODWARD, JENKS and HOOKER, JJ., concurred.
Judgment of the Municipal Court affirmed, with costs.