Rothfeld v. Clerkin

Bijur, J. (dissenting).

Plaintiff was injured according to her own testimony under the following circumstances: .

When about to cross Allen street, which runs north and south, standing on the northwest corner of the intersection of that street and Delancey, she noticed defendant’s automobile truck coming southward about “ two houses ” away, as described by plaintiff, or forty or fifty feet, as indicated by one of her witnesses. It was a few “ steps ” from the west curb. Allen street is about twenty-five feet in width.. She says the machine was coming “ fast;” her witness says that it was coming “ too fast.” She then started to cross the street and was struck by the' machine and slightly injured, though not run over. The machine stopped at once after the accident.

Although plaintiff testifies that it was coming fast—if it was proceeding even at the moderate speed (well within the lawful limit) of say twelve miles an hour, that would be over seventeen feet a second. It would, therefore, require but three seconds to traverse the intervening fifty feet. It needs but a moment’s consideration to realize that during this minute space of time defendant could not have become conscious of plaintiff’s intention to cross in front of him and at the same time check the progress of the car sufficiently to avoid a collision. It is quite apparent that plaintiff deliberately walked in front of the machine. Her contributory negligence thus disclosed is accentuated by her own testimony and that of her witness that the machine was proceeding “ fast ” or “ too fast,” which fact she and her witness no doubt emphasized in order to impute some fault to defendant. Indeed it is the only suggestion of negligence contained in the record. According to this contention, she voluntarily placed herself in a position where any sane person must have realized that nothing but a miracle could have saved her. Her testimony that the defendant sounded no horn or other warning is immaterial since she saw the machine plainly and observed its course. Kleiner v. Third Ave. R. R. Co., 162 N. Y. 193.

Few cases in which contributory negligence has been held to be present as matter of law present a state of facts so conclusive of the existence of that element as the one at bar. See McEntee v. Metropolitan St. R. Co., 110 App. Div. 673; Margulies v. Interurban St. R. Co., 116 id. 157; Thompson v. Metropolitan St. R. Co., 89 id. 10; McAuliffe v. New York City R. Co., 122 id. 633.

The case of Schneider v. Locomobile Co. of America, 83 Misc. Rep. 3, cited by respondent, is entirely inapplicable since the distance between plaintiff and the automobile when plaintiff there stepped from the curb was 100 feet, a difference of degree which becomes, when the question of contributory negligence is concerned, a difference in substance of the most pointed character.

Moreover, I can find nothing in the record to support a finding of negligence on the part of the defendant. The statement that defendant was proceeding “fast” or “too fast” furnishes no ground for determining what the actual speed was, and, of course, none for drawing the conclusion that rt was an unsafe speed under the circumstances (i. e., the condition of traffic on the street at the time), for there is no testimony as to these circumstances. Of course, the mere happening of the accident is no proof of defendant’s negligence.

In the prevailing opinion it is argued that plaintiff cannot be charged with the duty of making the mathematical calculation which I have suggested to demonstrate the closeness of approach of the vehicle. The point involved, however, is not the making of a mathematical calculation, but rather the duty of plaintiff to exercise reasonable care. A pedestrian crossing the street is chargeable with common knowledge possessed by every person of reasonable intelligence, and consequently chargeable with appreciation of the patent fact that an accident is inevitable if she steps in front of a vehicle which she claims was moving fast, and which, even if approaching at a rate which is not ordinarily denominated fast, would obviously overtake her within, a few seconds.

In regard to the question whether any negligence ■ on the part of defendant has been proved, I cannot find in the complaint anything to indicate that the negligence (there generally alleged) is claimed to be based on ‘ ‘ failure to keep the car under reasonable control as it* approached the street crossing.” But even if it were, that general language would cover a case of excessive speed, of inattention to duty on the part of the chauffeur, or, for that matter, his drunkenness or bad judgment in turning, or possibly even defective machinery on the car. Moreover, whatever may be said of the complaint, there is not a scintilla of evidence to indicate even now what plaintiff claims was the particular negligence with which defendant is supposed to be charged.

In the prevailing opinion it is said: “ The claim of plaintiff is that, although she was in plain view and manifested her intention of crossing when the truck' was fifty feet away, it kept right on and knocked her ■ down.” The same statement might be made if the truck had been only ten feet away, or, for that matter, two feet away. I concede “ The obligation of the truck driver to have his truck under reasonable control as he approached the crossing,” etc., but there is nothing in the evidence to indicate that he did not have it under reasonable control. A finding to that effect would have to be based on pure speculation. As I analyze the testimony, I cannot see how a finding of negligence on defendant’s part can be predicated on other than the disclaimed theory that the mere happening of an accident is proof of defendant’s negligence.

The judgment should be reversed, with thirty dollars costs, and complaint dismissed, with costs to appellant.

Judgment affirmed, with costs.