Wirth v. . Burns Bros. ( 1920 )

I dissent. The plaintiff's story that he looked before attempting to cross Second avenue and did not see the automobile which struck him is incredible as matter of law. (Escher v.Buffalo Lake Erie Traction Co., 220 N.Y. 243; Weigand v.United Traction Co., 221 N.Y. 39.) If he had looked he must have seen the automobile and if he did not look then he was guilty of contributory negligence.

No evidence was offered to show where the truck came from, how fast it was moving when the plaintiff was struck, or why it was backing. When it came to a stop it was facing southerly, about midway between the curb and the westerly rail of the car track. While no evidence was given as to how fast the truck was moving, it can fairly be inferred it was moving very slowly from the fact that it only ran between three and four feet after it struck the plaintiff, and came to a dead stop without running over his foot. No evidence whatever was offered to show that it came from Seventeenth street, and if it did, then the plaintiff, had he looked, would have seen it before stepping from the curb. When the truck proceeded after the accident it turned into Seventeenth street and went westerly. This destroys any inference that might be indulged in that it backed out of Seventeenth street.

The jury, had the case been submitted to it, could not have rendered a verdict in favor of the plaintiff, unless the same were based, not on evidence, but on a mere conjecture. Property cannot be taken from one person and given to another by the verdict of a jury unless there is some evidence to sustain the verdict.

The mere fact that the automobile was backing did not show that its driver was negligent. At times and under certain conditions, where traffic is as congested as it is in the city of New York, it may be absolutely necessary for vehicles to back, and that fact, unexplained, does not establish that it was a negligent act to do so. If it could be said that the driver of the automobile were negligent in backing his car, then it could equally as well be said that the plaintiff himself was guilty of contributory negligence in attempting to cross the avenue immediately in the rear of it.

I am of the opinion the complaint was properly dismissed and that the judgment appealed from should be affirmed, with costs to the respondent.

HISCOCK, Ch. J., HOGAN and ELKUS, JJ., concur with ANDREWS, J.; COLLIN, J., concurs with McLAUGHLIN, J.; POUND, J., not voting.

Judgments reversed, etc.