Wolkenfeld v. New York Rys. Co. ( 1915 )

PAGE, J.

This is an action to recover damages for personal injuries sustained by the plaintiff as a result of being struck and knocked down by one of the defendant’s surface cars. The plaintiff, a young girl, on her way to work at 8 o’clock a. m., was attempting to cross the Bowery at Fourth street, going from east to west on the northerly crosswalk. She testified that as she left the curb at the northeast corner of the Bowery and Fourth street she saw a car going north on the Bowery in the middle of the block below and coming towards her at a moderate speed, as if it had stopped in the middle of the block and had just started. There are two car lines upon the Bowery, the more easterly the tracks of the Third Avenue line and then those of the Fourth Avenue line. After crossing the Third Avenue tracks the plaintiff attempted to cross the Fourth Avenue tracks, and was struck by the Fourth Avenue car and knocked back towards the Third Avenue tracks. On cross-examination she testified that she was crossing the street with a crowd of people, and they ran to get ahead of the car, and she was in back of them and walked, and that they got over an,d she did not; that she saw the car all the time she was crossing the Third Avenue tracks and between the two tracks; that when she got over the Third Avenue tracks the car was near the south corner of Fourth street, going very fast. On redirect examination, however, she corrected her testimony, and stated that the car was about 50 feet away when she crossed the first track and was “just about starting.”

Elsie Zwang, who accompanied the plaintiff and was about a foot behind her when she was hit by the car, testified as a witness for the plaintiff that she had just left the curb, crossing the street, when she first saw the car, and it was “right on the south end side of the street (Fourth street), and it was pulling along as if it had stopped there and was starting going again”; that she was about a foot behind the plaintiff when; the car struck her, and the car did not stop after it had hit the plaintiff, but went ahead. On cross-examination she testified that the right-hand corner of the car hit the plaintiff and threw her over towards the Third Avenue tracks. She further stated that the distance from the curb to the Fourth Avenue tracks was 15 feet, and the distance from the south corner of Fourth street to where the plaintiff was struck was about 18 feet. The witness was then confronted with a written statement, which she admitted having made in her own handwriting, which related that she noticed the car approaching, and shouted to the 'plaintiff, and tried to pull her away from the car. She denied, however, that it was a correct statement of the facts, and said she was merely a child then, two years ago, and did not know what she was saying. The witness was 17 years old at the time of the accident. A druggist, who saw the accident from the front of his store at the corner, stated • that the car was going quickly, and went about 6 feet after it struck the plaintiff before it stopped. The defendant offered no evidence as to. the accident.

I am of the opinion, that the verdict as to contributory negligence was against the weight of evidence. The plaintiff admitted that she saw the car coming all the time she was attempting to cross the street. Thus, with her eyes on the car, she deliberately attempted to cross in front of it without running, when she had practically as great a distance to travel as the car had before reaching the point of contact. The plaintiff’s testimony that she was going over just a little behind a crowd, and the. crowd ran across to get ahead of the car, and she walked and did not get across, is very significant in this connection. Another part of the evidence which supports the defendant’s contention is the written statement admittedly made by the plaintiff’s companion and chief witness, Miss Zwang, that she shouted to the plaintiff and tried to pull her away from the car. The denial of this statement, on the ground that she was a 17 year old “child” when she made it and did not know what she was doing, is not convincing, since it was in her own handwriting.

Judgment is reversed, and new trial ordered, with costs to appellant to abide the event. All concur.