Ewald v. American News Co.

McAdam, J.

On April 20, 1896, plaintiff’s son was driving a horse attached to a coupe roclcaway, in which the -plaintiff was seated, along the easterly side of Seventh avenue in a northerly direction. They had reached- and passed the corner of One.Hundred and Twenty-fifth street when a cable car bound east approached, and the plaintiff’s horse and carriage, being then between the first or southerly track in One Hundred and Twenty-fifth street and the curb of said street, stopped and remained standing to permit the car to pass. While thus standing still the driver of defendant’s wagon, who was. driving behind plaintiff’s carriage at a distance of about ten feet, and from two and a half to three feet west of plaintiff’s carriage, drove the horse attached to the wagon in such a manner that in turning the comer of Seventh avenne and One Hundred and Twenty-fifth street and going easterly, the left shaft of defendant’s wagon struck the plaintiff’s carriage on the westerly side and ran through the side panel, causing the damage complained of. Immediately after the accident an officer arrested the defendant’s driver, and upon his promise to pay the damage he was discharged. The defense is that the plaintiff’s son stopped the coupe suddenly and backed up, thereby backing against the side of the shaft of defendant’s wagon and doing the damage complained of. The defendant’s proof on this subject is both unsatisfactory and improbable. At all events the facts stated- by its witnesses were denied by the plaintiff and her witnesses, and, the question became one of fact, on which the finding of the. justice is conclusive.

According to the plaintiff’s testimony (which seems to have been believed by the justice) the case clearly presented negligence on the part of the defendant, and no act on her part contributed to the injury. And the theory of inevitable accident advanced by the defendant furnishes no excuse under the circumstances. It will not do to permit one by his negligent misconduct to get so close to a vehicle as to make an accident inevitable, and then obtain discharge on the ground that the inevitable occurred.

If the justice had believed the defendant’s witnesses and found that the plaintiff’s coupe had backed against the shaft of the defendant’s wagon, the plaintiff would have been without a right of action. Bierbach v. Goodyear Co., 14 Fed. Repr. 826; Mineral Springs Co. v. City of St. Clair, 96 Mich. 463. Or if the cable car had suddenly and without warning stopped the progress of the plaintiff’s coupe, and the defendant without fault had run into the coupe, its conduct might have been excused. Mueller v. Railroad Co., 86 Wisc. 340. But the justice’s finding negatives the existence of any such facts, and does not permit the application of the cases cited.

The defendant’s wagon was going up Seventh avenue, behind and west of the plaintiff’s coupe, and was turning easterly into One Hundred and Twenty-fifth street when the accident occurred; so that the shaft of the defendant’s wagon was either driven into the plaintiff’s coupe by the act of the defendant’s driver, or the coupe must have moved sideways towards the west (almost an impossibility) against the shaft. The defendant’s driver does not complain of a sudden stoppage of the plaintiff’s coupe, but a backing up against his-shaft;. while the plaintiff’s witnesses testify there was no backing np of the conpe, that it was standing perfectly still when the shaft of the defendant’s wagon ran into it.

The case, therefore, presented a clear question of fact on con-, flicting evidence. The justice saw the witnesses, observed their manner of testifying, and was best qualified to determine the question of credibility. O’Dowd v. Bonnell, 17 Misc. Rep. 620; Huller v. Wynne, 16 id. 580; Katz v. Wolf, id. 82.

. The judgment must be affirmed, with costs.

Daly, P. J.,- and Bischoee, J., concur.

Judgment affirmed, with costs.