Wells v. Brooklyn City Railroad

Barnard, P. J.

There was sufficient evidence produced upon the part of the plaintiff to go to the jury. The accident happened on the 27th of November, 1888, between 6 and 7 o’clock in the evening. The plaintiff was 61 years of age, and attempted to pass over Flushing avenue in front of the defendant’s street-car, and was killed. When he started from the corner of Throop and Flushing avenues, and when he started to cross, he was observed to look both ways, and start after this observation. The car was then 50 feet away. The deceased got across the first and second track, and partly across the third track, when he was struck by the car horses, and thrown under the wheels of the car, and fatally injured, although the car did not pass over him. The negligence of the defendant consists in this: The car was going faster than usual, and did not slack up its speed until the man was struck, although in full view of the driver of the car. The witness Schnidler thought he would have time to cross safely with the high rate of speed which continued until the accident, when the driver put on brakes to stop the car. The driver did not see the deceased until he got within 12 feet of him, and the horses were within 6 feet of him. It was then too late to save the man who was crossing, as it takes about 8 feet to stop the car. The deceased was a little deaf. The driver was bound to be watchful, especially in a crowded city, so as not to injure persons crossing the street. Moebus v. Herrmann, 108 N. Y. 349 , 15 N. E. Rep. 415. It does not appear that he did so if he could see 50 feet ahead of him, and did see a man crossing the street, and kept up a rapid rate of speed until the horses were within 6 feet of the person crossing, and when the accident could not be prevented. The contributory negligence of the deceased was a question for the jury. It was not negligence on his part to attempt to pass in front of a car 50 feet away, as matter of law. The neglect of the defendant being found, it will go far towards acquitting the deceased of neglect. He probably assumed that the rate of speed was less than it was, or that the driver would slightly slacken the speed. McClain v. Railroad Co., 116 N. Y. 459 , 22 N. E. Rep. 1062. The order dismissing complaint and the judgment therein should be reversed, and a new trial granted, costs to abide event.