Opinion
December, 1906.
Arthur K. Wing (George S. Wing, of counsel), for appellant.
Herman C. Kudlich, for respondent.
The plaintiff, a man of seventy-three years of age, on March 13, 1903, in attempting to cross West Broadway at Barclay street from west to east and when about halfway across and while surrounded by a crowd of people, was injured by one of defendant's automobiles. Plaintiff testified in substance that he was knocked down, from the left side, and fell on his head; that he did not see any wagons or automobiles in front and did not see the machine that struck him until after the accident; that he did not look for anything except the people in front of him. There is not a line of testimony in the case which showed that he made any attempt to avoid the various vehicles which at the time filled the street. It was so crowded that the police officer on duty at that corner stated: "I had to pick my way across the street when I crossed over." Two witnesses to the occurrence were called for the plaintiff. One of these, Oscar Richert, said he saw the automobile hit the plaintiff and stop; it was moving and stopped instantly and plaintiff was picked up in front of it. He further testified that: "When I first saw them Mr. Wilkins and the automobile were just about coming together." Louis Smith, the other witness, stated that he was standing on the northwest corner of West Broadway and Barclay street and saw the automobile coming down West Broadway, going fast; that, at the time he saw the automobile, it was at Park place, one block above Barclay, and the plaintiff was about the middle of West Broadway, walking very slowly; that, after the accident, the automobile did not stop but continued on its way until it reached Vesey street, one block below, when it turned around and came back. This is at variance with the testimony of plaintiff and the witness Richert. The former testified that, when he arose after the accident, "the car was nearer to me than five feet;" and the latter, that the automobile stopped instantly. The driver of the automobile testifies that, as he was approaching Barclay street, he saw the plaintiff come from between a street railway car and a team that was behind; that, at this time, there was also a team of green horses plunging. It appears that the plaintiff looked toward these horses, when the chauffeur, according to his story, to avoid an accident, applied the brake and immediately reversed the machine, which he further testified was at a standstill when plaintiff ran against it, staggered back two or three steps and fell. From the foregoing resume of the testimony, it would appear that the plaintiff failed to sustain the burden of showing the absence on his part of contributory negligence. In Fuller v. Dederick, 35 A.D. 95, Herrick, J., said: "It seems to me impossible that, if she had been using her eyes and ears, as a person should do in crossing a city street, she should not have seen the horse and wagon approaching, and that, if she had been so using her senses, she would have known of its approach before it struck her, as she insists, or before she ran into it, as the evidence seems to indicate. I am, therefore, of the opinion that, so far from showing the absence of contributory negligence, the evidence shows its presence, and that, therefore, the judgment and order should be reversed."
GILDERSLEEVE and DAVIS, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.