Opinion
January 11, 1918.
Frank H. Innes [ Bertram G. Eadie with him on the brief], for the appellant.
Don R. Almy [ William S. Evans with him on the brief], for the respondent.
When the west-bound Castleton avenue car came near to Burger avenue, the motorman saw plaintiff standing under a bright light in the roadway in the usual place to board an east-bound car. He had no reason to look for danger, as plaintiff was not crossing over, and would naturally keep away from such a west-bound car. This could be rightfully assumed, especially that an adult would not step any nearer to the single car track. ( Matulewicz v. Metropolitan Street R. Co., 107 App. Div. 230.) But when the motorman saw plaintiff turn and diagonally approach the track, he sounded his gong, put on the air brake, and reversed the current, but plaintiff's umbrella caught against the side of the car. It turned her around, and caused her to fall. She was to blame for letting her umbrella catch against the car. Holding it low to cover her hat, and her preoccupation in looking the other way, account for her not seeing the lighted car, or hearing its alarm bells. If the verdict imports a finding that the gong was not rung, it stands against the affirmative evidence of many disinterested witnesses, without counter testimony from persons watching and listening for such signals, so that their attention was so directed that they might, to some extent, prove the negative. ( Foley v. N.Y.C. H.R.R.R. Co., 197 N.Y. 430.) The Highway Law (Consol. Laws, chap. 25; Laws of 1909, chap. 30), section 332, declaring as the rule of the road that vehicles turn to the right of the center, does not apply to such a street railroad. ( Whitaker v. Eighth Avenue R.R. Co., 51 N.Y. 295.)
The judgment and order should be reversed and the complaint dismissed, with costs.
JENKS, P.J., THOMAS, MILLS and PUTNAM, JJ., concurred; RICH, J., voted for a new trial.
Judgment and order reversed and complaint dismissed, with costs. Order to be settled before Mr. Justice PUTNAM.