Opinion
March Term, 1901.
Henry A. Powell, for the motion.
John L. Wells, opposed.
The question of plaintiff's freedom from contributory negligence was clearly for the jury. The accident occurred at about five o'clock on the afternoon of December 2, 1898, while the plaintiff was endeavoring to cross Fulton street in the borough of Brooklyn, at a point opposite the westerly line of Buffalo avenue. Buffalo avenue runs into Fulton street from the south, but does not cross it. The plaintiff walked eastwardly along the north side of Fulton street until he reached the first or westerly crossing to Buffalo avenue. It was getting dark, but there was still some daylight, and the store lights in the vicinity were lit. About thirty-five feet east of the crosswalk were two wagons, one of which was covered, and men were shoveling coal from one of them into a coal box on the edge of the sidewalk. The wagons stood parallel with and near to the curb. The distance from the curb to the nearest or west-bound track was about fourteen feet. While on the sidewalk the plaintiff could see down the tracks westerly a distance of two hundred feet, but in the opposite direction could only see the tracks for a distance of seventy-five or eighty feet between the wagons and the coal box. He was in a hurry, and was walking fast. Before stepping into the street he looked in either direction and listened, but neither saw nor heard a car. When half way to the west-bound track he looked again, and saw no car. He continued towards the track, and was struck by the step of a car going west before he placed his foot upon the track. In his own words: "Then I stepped down off the curb and I walked towards the railroad; I looked again, and I see no car either way; I then walked to cross the track; I placed my foot that way (illustrating) on the track; that is half way on the track. I then looked again, and as I looked the car was right onto me, and the men hollered, and as I pulled my foot back it struck me on the other leg and knocked me forward; I then struck the point — or the front of the car struck me on the other leg, and down I fell and was insensible; I did not hear any gong sounded; I heard the man say `Ah!' something like that, you know; I couldn't tell what he said; he hollered in surprise — made a noise in that way; I heard him make that noise as I pulled my foot back; it was virtually about the same time I was struck."
From this statement it is apparent that while a jury might very well say that the plaintiff was guilty of contributory negligence, such negligence could not be predicated as matter of law. The standard of care is the conduct of persons of ordinary prudence, and the plaintiff's act is to be measured by the situation and the surroundings. He was required to exercise his senses for his own protection, and claims to have done so more than once. If they failed to protect him because not exercised at the precise point or moment when they would have been effective, the conclusion that the result was a want of ordinary and reasonable care would flow from inferences dependent upon measurements and estimates which it is peculiarly within the province of a jury to make. The law required him to look and listen in accordance with the dictates of ordinary prudence, but did not require the guaranty of any specific result. ( Turell v. Erie R.R. Co., 49 App. Div. 94, and cases cited.)
More difficulty accompanies the question of defendant's negligence. Here, too, however, the standard of duty enjoins reasonable care, and while the evidence is slight, the company cannot be said to be absolved as matter of law. There is evidence from which the jury could conclude that the motorman might reasonably anticipate that pedestrians would use the crossing at the intersection of Buffalo avenue with Fulton street, even although the avenue does not actually cross the street. No case is cited to the effect that there is no obligation, at such a crossing, to have the car under control so that an accident could be averted in case some one stepped suddenly from behind the wagons which were seen to obstruct the view of the crossing, and there is evidence tending to show considerable speed in the fact that the car ran at least fifty feet below the crossing before stopping. At all events, a witness attracted by the crowd in front of the drug store found the car standing at the time that distance below the crossing. In the case of Towner v. Brooklyn Heights R.R. Co. ( 44 App. Div. 628) it appeared that the plaintiff looked in both directions before leaving the curb and saw no car, but on attempting to cross the tracks was struck by an approaching car which sounded no warning until the moment of collision, the car running from fifty to seventy-five feet before it was stopped, and this court held that the questions both of plaintiff's freedom from contributory negligence and defendant's negligence should have been submitted to the jury. In this case the jury would decide the point at which the motorman saw or would have seen the plaintiff in the exercise of reasonable care, and would also determine whether such care was exercised as the time permitted in attempting to avoid the accident or to warn plaintiff of his danger in view of the existence of the crossing, the presence of the wagons and the speed of the car, as they may find it.
It follows that the plaintiff's exceptions should be sustained and a new trial granted, with costs to abide the event.
All concurred, except SEWELL, J., taking no part.
Plaintiff's exceptions sustained and new trial granted, costs to abide the event.