McKinley v. Metropolitan Street Railway Co. ( 1902 )

Ingraham, J. (concurring):

I concur in the reversal of this judgment upon the ground that the plaintiff failed to prove that he was free from contributory negligence. The plaintiff testified that he walked on the crosswalk on the south side of Forty-first street and Sixth avenue ; that he saw a truck approaching which at that time was just about the middle of the street turning west into Forty-first street; that he then started to cross the track and as he put his foot over the first rail the car struck him; that as he put his foot upon the track he noticed the car and attempted to turn and jump back; that the car was right on top of him, about four or five feet away when he first noticed it; that his left leg was then over the rail, the right foot not, yet over the rail; that turning to jump back he placed his back towards the car and was struck by the car on the right hip. He further testified that he could have seen the car if there had been one coming on the track, but that there was no car in sight; that at the time he left the curbstone to cross Sixth avenue he was looking uptown the whole time. This was the evidence of the plaintiff, the principal actor. The fact that the car was within four or five feet of the plaintiff when he attempted to cross the track is conclusive evidence that the car was there. Assuming that the plaintiff looked as he said he did, and could see no car, it must have been hidden by the wagon that was on the track, and if that was so, then it must follow that the view of the plaintiff was hidden from the motorman, as it would have been impossible for the motorman to see the plaintiff if the plaintiff could not see the car upon which the motorman was riding. The plaintiff stood in the street within two feet of the track, and if he had waited but a moment until the wagon was clear of the track the car would necessarily have been in plain sight. The plaintiff, thus standing in a place of safety, attempted to cross the track either without looking after his view up the track was unobstructed by the wagon, or after he had seen the approaching car. In either event he was guilty of contributory negligence.

I think, therefore, the complaint should have been dismissed, and for that reason the judgment should be reversed and a new trial ordered.

Van Brunt, P. J., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.