Opinion
January, 1897.
Tierney Halsey (John M. Tierney, of counsel), for appellant.
Henry Schmitt and George H. McAdam, for respondent.
The defendants operated a trolley railroad on the White Plains road, and one of its cars damaged the plaintiff's wagon while crossing the road at Fifth street. The question was whether the collision occurred through the negligence of the motorman of the car and whether any negligence of the driver of the wagon contributed to the injury. Considerable testimony was taken on these points, including that of witnesses who were disinterested, and there was ample evidence to sustain a finding that the car was proceeding at a very high rate of speed; that the driver of the wagon exercised proper care in looking out before attempting to cross the tracks; and that he could have been perceived by the motorman of the car in time to prevent a collision if ordinary care had been used. The testimony of the driver was that when they approached the White Plains road no car was in sight; that it was first perceived when their wagon, which was heavily loaded, was upon the tracks; that they attempted to escape but the hind wheel was struck and the wagon was thrown against the curb and upset. Some witnesses estimated the speed of the car at twenty miles an hour. This testimony finds some corroboration in that of the conductor and motorman. While it is true that they claim that the car was moving only at the rate of five or six miles an hour, they also state that a car moving at that rate could be stopped in from twelve to twenty feet by the ordinary process, and in less distance if "the reverse" was applied, and that it was applied in this case. These two witnesses estimate the distance of the car from the cross street anywhere from half a block to twenty-five feet at the time they first perceived the wagon. When the car came to a standstill after the collision it had cleared the cross street and must, therefore, at the lowest computation have traveled the whole width of that street, the twenty-five feet of distance below it and its own length of twenty-seven feet above it after the time that efforts were made to stop it. The rate of speed indicated by the facts as to the distance which the car proceeded after the collision, and notwithstanding all the efforts of the motorman to stop it, indicates conclusively the very high rate of speed at which it had been proceeding before the collision and its great distance from Fifth street at the time that the plaintiff's driver proceeded to cross. He was, therefore, not chargeable with negligence in attempting to cross the tracks when the car was at such distance, and as the hind wheel was struck the conclusion is inevitable that the motorman of the car saw the wagon in time to avoid a collision but took the chance of clearing it without slackening his speed, and so neglected the ordinary precautions to avoid the accident.
Complaint is made of the award of $125 damages to the plaintiff. There was evidence of injury to the wagon and to the goods, consisting of thirty boxes of beer and a demijohn of wine. The damage to the merchandise was $43.20, leaving a balance of $81.80 for injury to the wagon and harness. The latter was estimated at $25, which would leave $57 for the wagon. Plaintiff claimed that the wagon was totally destroyed, and that it had cost her $125. The amount of the injury to it was disputed, but it was for the justice to decide upon such a dispute and his allowance is not extravagant in any view of the testimony.
Judgment affirmed, with costs.
BISCHOFF, J. concurs.
Judgment affirmed, with costs.