Dobert v. Troy City Railway Co. , 91 Hun 28 ( 1895 )

PUTNAM, J. (dissenting).

I think the judgment should be affirmed for the reasons stated by the learned trial judge in granting the motion for a nonsuit. See Scott v. Railroad Co., 16 N. Y. Supp. 350; Thompson v. Railroad Co., 145 N. Y. 196, 39 N. E. 709.

' NOTE.

The reasons stated by the trial judge on granting the motion for a non-suit, and adopted by Mr. Justice Putnam, supra, are as follows:

“It appears from the evidence that the plaintiff’s intestate was a passenger on one of the defendant’s electric railway cars, which was being propelled through River street, in the city of Troy; that the car was running on the westerly track through River street, and stopped at the southerly crossing at the intersection of that street with Congress street to allow passengers to alight. There was a guard upon the east side of the platform, in consequence of which the decedent was compelled to alight upon the westerly side of the platform. He passed the rear of the car from which he alighted, proceeding in an easterly direction towards the defendant’s easterly track through River street. I think it is clear from the evidence that before he stepped upon the easterly track of the defendant in River street he could have seen a car approaching from a southerly direction. There is no evidence that there was anything here to obstruct his vision. A white car on the defendant’s line was proceeding northerly at this time on the easterly track through River street, which struck the decedent, and produced his death. That car he could have seen approaching before he stepped upon the easterly track. I am of the opinion that the same rule of law applies in this case as is applicable to the case of a pedestrian upon the highway who attempts to cross a street where it is intersected by a steam railway; that it is his duty to look and listen for an approaching train; that that duty is incumbent upon him before he steps upon the track; that if he fails to look, his omission is, as matter of law, negligence, if by looking he could have seen the approaching train. If he does look, and sees the train, and proceeds upon his way, he does it at his own peril. That principle of law, I am of opinion, is applicable to a person attempting to cross a street in a city upon which there are cars propelled by electricity; and I hold the rule to be the same in this case as in the case of steam railways, and my decision of this motion is based solely upon such holding. As I have said, the decedent could have seen the train proceeding northerly upon the easterly track in.River street. There was nothing to obstruct his vision there. He failed to look, which was negligence per se; or, if he did look, and saw the train, he proceeded on his way across the track at his peril, and such negligence was contributory in this action, and is fatal to a recovery.

For these reasons the motion for a nonsuit is granted.”