Curry v. Union Electric Railway Co. , 86 Hun 559 ( 1895 )

HERRICK, J.

The only point in this case that strikes me is as to whether there was any evidence of a lack of contributory negligence on the part of the plaintiff to submit to the jury. It appears that ón the east side of Nelson avenue there were several buildings that somewhat obstructed the view of the defendant’s tracks; also a barn east.of the Wiggin’s house; that the plaintiff, as he approached the track, looked between the house and the barn, and saw nothing upon the track. It appears also that, for a space of some feet, the Wiggin’s house entirely obstructs the view of the tracks, looking east, until a point is reached distant 80 feet from the south rail of defendant’s tracks, at which point said tracks xcan be seen for a distance of 100 feet from the center of Nelson avenue. xlt 60 feet from the south rail, defendant’s track can be seen for a distance of 130^- feet; and 46 feet therefrom the defendant’s tracks can be seen for a distance of 289 feet. The plaintiff, it appears, was standing on the right-hand or east side of the wagon. His attention was directed to a car to the west of Nelson avenue, and some 500 feet distant from the crossing, at which point it turned off on Adams street. He does not seem to have looked continuously, but, as he turned and looked to the east, he discovered the car 40 or 45 feet distant; his horses at that time being almost upon defendant’s tracks. Going at any rate of speed that was testified to upon the trial, either at 8 or 20 miles an hour, it would take the defendant’s car but a few seconds to traverse the difference between 40 or 45 feet and 136 feet, at which it appears the plaintiff could have seen the car, when 60 feet away, or 289 feet, when 46 feet away from the south rail. It will thus be seen that the diversion of plaintiff’s attention from the car coming from the west for but a very short period of time would enable defendant’s car, coming from the east, to cover the distance at which it could bé seen after the line of plaintiff’s vision reached beyond the Wiggin’s house, until the car would be almost upon plaintiff’s vehicle. It was the plaintiff’s duty to look both ways. He looked to the east at one point. He then reached a point where he could no longer look to the east. He then looked to the west. His attention was detained there for a moment, and, when he looked to the east again, the car was almost upon him. It seems to me, therefore, under the circumstances, that this is a case for the jury to determine. Judgment should therefore be affirmed, with costs.

PUTNAM, J., concurs. STOVER, J., not acting.