Opinion
December Term, 1898.
Emanuel Jacobus, for the appellant.
Eugene Treadwell, for the respondent.
On the trial of this action the complaint was dismissed, apparently upon the ground of the contributory negligence of the plaintiff's intestate. There was evidence tending to show such negligence, but it is unnecessary to inquire whether it should have been submitted to the jury, because it is entirely plain that there was insufficient evidence of negligence on the part of the servants of the defendant. All that was shown concerning the accident was that on the afternoon of the 25th of November, 1896, the plaintiff's intestate and two other boys had been playing in the street on the east side of Third avenue between Ninety-third and Ninety-fourth streets. The plaintiff's intestate started to cross the avenue diagonally from the corner of Ninety-third street, northwesterly in the direction of Ninety-fourth street; that is to say, he was at about the northeast corner of Ninety-third street and he ran diagonally and northwesterly across the avenue and towards the middle of the block. In running, he passed behind a car going north and reached a point about the middle of the avenue and between the two tracks of the Third Avenue railroad. Just as he passed behind the car moving north, witnesses observed a car coming south at a rapid rate and some forty or fifty feet distant from the plaintiff's intestate. When the plaintiff's intestate reached the point between the two tracks he stopped, and after standing for some appreciable space of time, he suddenly started to run across the avenue towards the westerly sidewalk, was struck by the south-bound car and received the injuries from which he died within a few hours. That is substantially the whole evidence as to the exact occurrence.
This accident took place in the middle of a block, and upon the plaintiff's own showing and contention, the plaintiff's intestate saw the approaching car. The whole argument that he was free from contributory negligence is based upon the concession that he saw the car and exercised judgment in stopping and afterwards going forward. It may fairly be presumed that the motorman saw the boy standing between the tracks. As the boy was standing there looking at the car, there is no reason whatever to infer that the motorman had any cause to believe or suspect that he would run across the track, standing as he did in an attitude of watchfulness and apparently waiting for the car to pass. That is all the material evidence upon the subject of negligence of the motorman. There is some vague statement of the driver of an express wagon that for several blocks he had been racing with this car on the westerly side of it, but according to the testimony of this driver, at the time the boy was struck, he (the driver) was some twenty-five feet behind the front of the car. Under those circumstances it would not have been proper to allow the case to go to the jury, and the nonsuit should have been directed on the ground that there was no proof of negligence on the part of the defendant's servants in charge of the car.
The judgment must, therefore, be affirmed, with costs.
VAN BRUNT, P.J., BARRETT, RUMSEY and INGRAHAM, JJ., concurred.
Judgment affirmed, with costs.