Dise v. Metropolitan Street Railway Co. , 48 N.Y.S. 551 ( 1897 )

McAdam, J.

According to the facts as found by the jury the plaintiff, at about 8 o’clock on the evening.of October 21, 1895, was driving a horse drawing a single truck westward along Bleecker street. As he approached Broadway he looked up and down that thoroughfare and saw one of defendant’s cars about a block away coming up town, and another about 150 feet away coming down town. Finding the roadway clear the plaintiff undertook to cross Broadway from east to west. He got over the easterly track in safety, but while crossing the westerly track the south-bound car struck his truck, throwing him off, whereby he sustained serious personal injuries. While the plaintiff’s evidence was a little confused and contradictory upon his cross-examination, the facts stated remained substantially unchanged. .

The witnesses produced by the plaintiff testified that the car was going very fast, one putting thé speed-at a mile in five minutes, and both agreeing that the rate at which it was going was not slackened at street crossings for some time previous .to the collision. Abraham Goodman, a passenger on the car, saw -the truck cross the- track and remarked to a companion of his that the car would catch the truck (meaning that it would run into it), and immediately the collision took place.

Considering the fact that at street crossings the defendant in running .its cars had no rights superior to those possessed by drivers of vehicles moving in the street crossed (O’Neil v. R. R. Co., 129 N. Y. 125; Reilly v. Third Ave. R. R. Co., 16 Misc. Rep. 11; McDonald v. Third Ave. R. R: Co., id. 52; Brozek v. Steinway R. R. Co., 10 App. Div. 360), it will not do to hold as matter of ■ law, that, under the circumstances, the defendant was free from fault, or the plaintiff guilty of contributory negligence.

To justify a nonsuit on the ground of contributory negligence it must appear clearly that no construction'of the evidence or inference drawn from the facts will warrant a contrary conclusion. Stackus v. R. R. Co., 79 N. Y. 464; Thurber v. R. R. Co., 60 id. 326; Massoth v. R. R. Co., 64 id. at p. 529; Friess v. R. R. Co., 67 Hun, at p. 210.

In an action to recover damages for negligence the plaintiff is entitled to have the issue of negligence submitted to the jury when it depends upon conflicting evidence, or on inferences to be drawn from circumstances in regard to which there is room for a difference of opinion among intelligent men. Payne v. R. R. Co., 83 N. Y. 572;. The trial judge properly denied t.he motion to dismiss, and sent the issues to the' jury for determination.

The jury found, from the conflicting testimony, that the collision was caused by the negligence of the defendant’s gripman, and that the plaintiff was free from fault, and awarded him $375, which is-certainly a moderate sum.

There is no merit in the exceptions (two of which were waived on the argument), and the judgment must be affirmed, with costs.'

Daev, P. J., and Bischoff, J., concur.

Judgment affirmed, with costs.