Frank J. Lennon Co. v. New York City Railway Co.

PER CURIAM.

From the evidence it appears that when the driver made his attempt to cross the track the car was from half to three-quarters of a block away. It was at this time, when his attempt became apparent; that the defendant’s duty of care attached, as well as the. driver’s right to rely upon the performance of that duty. It is not to be assumed, from the proof of the speed of the car, that it could not have been slowed or controlled sufficiently to avert the collision by the use of care at the time referred to. Greater promptness and vigilance in the control of a rapidly moving car might well be required than would suffice for ordinary care in the operation of the same vehicle moving slowly, and the plaintiff’s driver was not negligent in making use of the street with reliance upon the observance of ordinary care by the operators of cars, notwithstanding that this car was coming rapidly from a more or less distant point. The appellant’s contention that the driver took the risk of a close calculation of speeds assumes that the pace of the car was to be negligently continued, as a matter of reasonable expectation; but the driver was entitled to expect the contrary.

The proof quite clearly supported the finding of negligence and of the freedom from contributory negligence, within settled rules of law; and the judgment should be affirmed, with costs.