Barber v. Great Atlantic & Pacific Tea Co.

Per Curiam.

The court did not err in setting aside the plaintiff’s verdict returned by the jury. The reasons assigned for the court’s action were that upon the evidence the jury could not reasonably have found either that the defendant’s servant was negligent or that the plaintiff was free from contributory negligence. An examination of the evidence shows that the second of these propositions clearly is sound. The plaintiff was injured in a city street, at the time well lighted, and, outside of the sidewalk, wholly deserted and free from obstructions to the sight of a traveler therein, save for the presence of the defendant’s sleigh, which was being driven along it at a moderate rate of speed estimated at about four miles an hour. He had just stepped from the sidewalk with the purpose of crossing the street diagonally. At this time the sleigh, must have been only a few feet away from his intended path. He had proceeded a distance from the curb, variously testified to as from three or four to thirteen feet, when he was hit in the back by one of the shafts of the sleigh.

The conclusion is inevitable that in crossing as he did he either made no use of his eyes in self-protection, or that, making such use, he heedlessly stepped in front of the approaching sleigh, of whose presence he must have been aware. In either event he was not in the exercise of due care.

There is no error.