Woodward v. New York Railways Co. , 149 N.Y.S. 1003 ( 1914 )

Laughlin, J. (dissenting):

There is an elevated railroad supported by pillars and a double-track surface street railway in Eighth avenue which is crossed at right angles by One Hundred and Thirtieth street. At about five o’clock in the afternoon on the 6th day of July, 1912, the plaintiff, an experienced horsewoman, accompanied by her niece, seven years of age, was driving a gentle horse attached to a runabout at a slow trot westerly along One Hundred and Thirtieth street, intending to cross the intersection of that street with Eighth avenue, and to continue on beyond. The plaintiff was in no hurry and as she passed the easterly building line of Eighth avenue she looked up and down the avenue. The only vehicle in sight was a southbound car a block or more to the north on the westerly track, and she was very positive that it had not passed One Hundred and Thirty-first street. She testified that she “ thought it was safe ” to proceed, and that she did not give the car any further attention because she “did not think it necessary;” and that after so looking she continued to pass on at the same speed giving her attention to the street ahead of her and to the crossing, and the car came on without slowing down, and caught the rear right wheel just as it was passing from the range of the car, causing the damage for which the plaintiff has recovered.

The testimony of the plaintiff quoted hy Mr. Justice Scott was given on cross-examination in answer to leading questions; and the record shows that counsel for the defendant insisted on having several answers made by her to the effect that if she thought there was danger that the car would overtake her she would not have proceeded stricken out. On a consideration of the entire testimony given hy the plaintiff the jury were warranted in finding that the plaintiff in proceeding believed that she had time to cross the track before the car would reach the crossing. Moreover, if the car was a block or more away, she was justified in proceeding upon the theory that the motorman would have his car under control when he approached the crossing and would accord to her the right of way to which she was entitled, since, according to testimony which the jury were warranted in believing, “when she started to drive across, the street car was fully half a block or more away from her,” and when her vehicle was passing off the south-bound track with one of the hind wheels on it, “.the car was about twenty-five feet away from her.” The car, however, approached the crossing “at a very great rate of speed,” without slowing down, and without any signal or warning to the plaintiff that she-was not to be accorded the right of way, or to attract her attention to the danger that the car would strike her vehicle if she did not urge the horse forward faster.

I am of opinion that it cannot be held, as matter of law, that the plaintiff, in the circumstances, was guilty of contributory negligence in failing to look again, and to discover that the car was coming on at this high rate of speed; and that it was for the jury to say whether or not the plaintiff should have looked again, or should have refrained from proceeding as she did, and that their verdict in her favor is amply sustained by the evidence. It has never been held by the Court of Appeals that a person approaching the crossing of a surface street railway track in a thickly populated city is obliged as a matter of law to look more than once for an approaching street car, after passing the building line where a view may be had. The facts in the cases on which the learned counsel for the defendant relies on this point, particularly Baxter v. Auburn & Syracuse El. R. R. Co. (190 N. Y. 439), clearly distinguish them from the case at bar, for here there was no lapse of time between the plaintiff’s looking up and down the avenue and proceeding to cross. Her vehicle was already in motion and it would have taken only a few seconds to have cleared the track.

I am of opinion that it is essential to the rights of pedestrians and others obliged to cross street railway tracks at crossings congested by vehicles and pedestrians that the rule be established that they may in exercising their right of way when they reach the track first, proceed on the assumption that an approaching street car will be slowed down, or so controlled as not to endanger their passage, unless the circumstances are such that a person of ordinary prudence would have discovered from the nearness or speed of the car, that such right was not to be accorded. These views are in accord with the observations made by me in Du Franc v. Metropolitan Street R. Co. (83 App. Div. 298), where I was stating the rule applicable when the pedestrian is aware or should know that the motorman has failed to slow down for the crossing, and was proceeding over it at full speed.

I, therefore, dissent from the dismissal of the complaint and vote for affirmance.

Ingraham, P. J., concurred.

Judgment reversed and complaint dismissed, with costs. Order to be settled on notice.