Lampe v. Simpson

The only error assigned is the denial by the trial court of the defendant's motion that the verdict be set aside as against the evidence, and the sole question presented is whether, upon the evidence, the jury could hold that, as the verdict imports, the plaintiff was free from contributory negligence. The plaintiff, at the time re was injured, was crossing Third Avenue in New York City, from east to west, at the northerly side of Seventy-second Street. The defendant's truck was being driven northerly along Third Avenue, in the northbound or easterly track of double trolley tracks situated in the center of the avenue, and came in contact with the plaintiff just as the latter was stepping upon that track. The distance from the easterly curb to the easterly rail of the track was testified to as twenty-three feet, eleven inches. The plaintiff testified on direct examination that before he started to cross the street he "looked on all sides" to see if automobiles were coming, saw the defendant's truck coming at Seventy-first Street, which was about two hundred and fifty feet distant, thought he had sufficient time to cross; that when he reached the pillar supporting the elevated railroad tracks, near the trolley tracks, he looked uptown (north) to see if any traffic was approaching from that direction, saw none, and was about to step on the track when the truck struck him. This version of the plaintiff's conduct with reference to looking for approaching traffic was substantially corroborated by other witnesses. There was also abundant evidence that the speed of the truck was increased as it approached and crossed Seventy-second Street. Upon such a state of facts the question as to whether the plaintiff's conduct was negligent and a proximate cause of the accident would be, clearly, for the jury and they might reasonably answer it in the negative. Perry v. Haritos, 100 Conn. 476, 479,124 A. 44; Farrell v. Waterbury Horse R. Co.,60 Conn. 239, 21 A. 675, 22 id. 544.

The contention of the defendant to the contrary is based mainly upon the fact that the record discloses that the plaintiff, on cross-examination and re-direct, while reiterating, in answer to questions, his former testimony that he last saw the defendant's truck when it was crossing Seventy-first Street, and that he looked in the opposite direction when he neared the trolley tracks, also, being asked, in substance, if he saw the truck all the time from the time it was at Seventy-first Street until he was struck by it, gave affirmative answers to these questions.

The plaintiff is a German, three years in America, and spoke so little English that he testified through an interpreter. The record shows that the witness had frequent difficulty in understanding the questions as translated by both of the two interpreters who were used, and the second, who was serving during the cross-examination and re-direct, later testified that the plaintiff spoke Platt Deutch, a different German dialect from that spoken by the interpreter. The inconsistent answers above-mentioned, together with the frequently recurring difficulties as to translation, give the impression, upon a mere reading of the record, that lack of understanding between witness and interpreter may well have been responsible for the seeming contradictions. The jury and the trial court were in a much more advantageous situation to determine which answers were credible and which mistaken or misunderstood, and their respective conclusions, as evidenced by the verdict, rendered under adequate instructions, and the refusal to set it aside, are not to be lightly disregarded.

Furthermore, that a person who was constantly watching an approaching truck would, notwithstanding, walk into or in front of and be struck by it, is so patently improbable as not to be readily credited. Also, even if the testimony of the plaintiff as to this point were entirely disregarded, there was sufficient evidence of other eyewitnesses to justify the jury in finding lack of contributory negligence.

There is no error.

In this opinion HAINES and BANKS, Js., concurred.