Ottendorff v. Willis ( 1894 )

BROWN, P. J.

The plaintiff’s intestate, while crossing South street, in the city of New York, was run over by a large truck owned by the defendant, and received injuries from which he died. The accident happened about midday upon the crossing leading from Roosevelt street ferry to the southwest corner of South and Roosevelt streets. The deceased was coming from the ferry, and. the truck was being driven to the dock of the Clyde line of steamships. The only witnesses who saw the accident, and attempted to describe it, were the driver of the truck and a man named Leo. The latter was called by the plaintiff, and when she rested her case it did not appear which party was to blame. At the suggestion of the court, Leo ivas thereupon recalled, and testified as follows :

“This truck was standing still on Roosevelt street. This old gentleman was walking ahead when it was standing still. He was about fifteen feet from the truck when it started, while he was walking ahead. When it started, OttemdorlT was walking right ahead of the truck. He was always in front of the truck. I should judge, about eight feet, at that time. He was in front of the truck, and the driver whipped up his horses. He was eight feet away from the truck,—six feet from the truck. There was three cross-walks there,—two-straight ones, and a slanting one from the ferry,—and this old gentleman was walking on the slanting cross-walk, towards Roosevelt street. Then the truck was standing on the side of Roosevelt, when he started ahead and struck the old gent. If the old man had stopped when the truck started ahead, he woulfl not have been hit. He was not in line with the truck. He kept right ahead,— going ahead of the truck. The driver of the truck brought his truck between Ottendorff and the sidewalk. There was more than fifty feet beyond ivher® he could have gone clear. This truck was driving towards the down-tow» side on Roosevelt street,—going towards the river side.”

The driver contradicted this evidence, and gave testimony which, if believed, entirely exonerated him from fault, and placed the blame upon the deceased. I think the case was for the jury. If the deceased started to cross the street while the truck was standing still, his action in so doing was not careless, and the driver of the truck was bound to avoid him. The driver testified that he saw the deceased, and observed that he was an old man, and appeared timid; and his proper course was to have delayed starting his team until the deceased had passed in front of him. The evidence, I think, permitted the conclusion that the driver was negligent, and that the deceased exercised due care.

It ivas within the discretion of the trial court to permit the witness Leo to be recalled, and the exception to the ruling presents no question upon this appeal. ■ Whether Leo’s testimony was worthy of belief was a question for the jury, and not for the court. The judgment and order should be affirmed, with costs. '

CULLEN, J., concurs.