Opinion
November 6, 1908.
Arthur K. Wing, for the appellant.
Louis Zinke of counsel [ L. A.U. Zinke, attorneys], for the respondent.
At about six-fifty P.M. December 22, 1905, two electric hansoms owned by the defendant were proceeding north on Broadway. The power in the rear machine had become weak and it was being towed by means of a rope about an inch to an inch and a half in thickness, and about six or seven feet in length, which connected the two vehicles. A driver was seated on the high seat in the rear of each machine. At Thirty-fourth street a police officer in charge of the traffic signaled them to stop, and they did stop on the south side of Thirty-fourth street, and close to the sidewalk on the right-hand side of Broadway.
The plaintiff testified that she was crossing Broadway and Sixth avenue, headed for the corner of Thirty-fourth street; that she got clear across both sets of tracks; that she saw the first automobile approaching and that she stood and allowed it to pass; that she looked up and saw another automobile in motion but suddenly stop; that she looked at the chauffeur; that after the first vehicle had stopped she stood for probably half a minute or a minute to let this vehicle come to a stop; that she looked straight ahead; that she proceeded rapidly when she was caught by a rope and thrown down; that at no time did she see this rope before she fell; that after she got up she saw the number on the automobile clearly and had no difficulty in seeing it.
The chauffeur on the rear automobile testified that after they had stopped in response to the order from the police officer, a little south of the crossing, he saw the lady and shouted, "Hey, there, you can't come over here. * * * Look out there, lady, there is a rope there;" and that she came along and fell down. The chauffeur on the first machine testified that he heard the warning given.
The plaintiff testified that she did not hear the warning and did not see the rope.
I am unable to discover, upon these facts, upon what a finding of negligence on the part of the defendant can be predicated. When an automobile loses its motive power it must be moved by the application of some outside power. The ordinary and common way is by attaching it to another vehicle and towing it to the garage. The machines were at rest. The plaintiff swore positively that she stood for not less than half a minute after they stopped. The light was sufficient for her to read the number on the machine. That she did not see any rope may be admitted, but its position between the two machines, under the circumstances, could not be held to be an act of negligence; nor can I see that the defendant is any more responsible for her act in running into the rope than if she had run into the machine itself. The automobiles were on the street, where they had a right to be. They had been ordered by the police to stop at the place where they then stood. Seeing the plaintiff suddenly try to pass between the vehicles, the only thing that the men in charge could do was to warn her, and this they did. I am of the opinion that the verdict was not warranted by the evidence.
The judgment and order should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.
PATTERSON, P.J., McLAUGHLIN and SCOTT, JJ., concurred; HOUGHTON, J., concurred as against weight of evidence.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.