Flynn v. Joline , 119 N.Y.S. 785 ( 1909 )

Ingraham, J. :

One of the witnesses called for the plaintiff testified that he first saw the deceased between eleven and half-past eleven o’clock on the night of the 17th of March, 1908, crossing from the west side of Ninth avenue at Forty-first street. The car evidently was in plain sight, coming very fast. He testified that the deceased stepped on the track in front of the approaching car ; that he was struck when stepping on the track; that as soon as he got on the rail the car hit him. This witness was the only one who had seen the deceased prior to the accident. It is thus undisputed that the deceased stepped immediately in front of a rapidly approaching car and was struck as he'stepped on the track. That he saw the approaching car is evident, as lie was seen waving his hand for the motorman to stop. It is thus apparent that the deceased was not on the track for a sufficient time to - enable the motorman to stop the car before running him down. The only ground upon which it could be claimed that the motorman was negligent was because he approached a crossing without having his car under control, but while the witness speaks of the car coming very fast, no attempt is made to state the rate at which the car was traveling, and there is nothing-to justify a finding that the motorman had not the car under control so that he could stop it at the crossing where he had noticed that a person was about to cross the' track. I do not think, there-' fore, that .there was any evidence that the defendant was negligent, but certainly the evidence is conclusive that the plaintiff, seeing the approaching car, stepped on the track in front of it and was thus guilty of contributory negligence. There was no evidence that the car was not lighted, or that there was any obstruction which prevented the deceased from seeing the approaching car, and that he did see it was apparent from the fact that he desired the motorman to stop. Undoubtedly the deceased wished to take this car. on its way uptown. He had to cross the track before he could board the car, and he evidently thought that by motioning the motorman to stop he could get across the track before the car struck him, and in that he was evidently mistaken, as he was struck as he stepped- upon the track. It was clearly a negligent act to step; in front of a rapidly approaching car, and the accident was, therefore, caused by the deceased’s negligence.

It follows that the judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

McLaughlin and Scott, JJ., concurred; Laughlin and Houghton, JJ., dissented.