New York Bread Co. v. New York City Railway Co.

MacLean, J. (dissenting).

The jury found for the plaintiff upon its claim for injury to one of its wagons in a collision with a car, but under the charge of the learned court and the applicable law the defendant should have had the verdict, for the driver established his own contributory negligence by testifying that, coming out of a store, the third building north of Fifty-fourth street on Second avenue, and crossing the sidewalk, he saw a- car at Fifty-fifth street coming south at a moderate rate of speed, then he jumped upon his wagon so nearly along side of the curb that he could make the step from the curb, which was fifteen to twenty feet from the westerly rail of the south-bound track, his horse started to go diagonally toward and across the track, and so when the wagon had gone about twenty or, twenty-five feet and entered upon the track it was struck.

The last look of the driver at the car was when he was upon the sidewalk. “ Having looked in the direction in which the car proceeded but once, the plaintiff failed in his very evident duty in proceeding to cross the track without again looking.” Cosgrove v. Interurban St. R. Co., 84 N. Y. Supp. 885; Groening v. Interurban St. R. Co., 88 id. 355. There was nothing so far as appears to obstruct the driver’s vision or distract his attention. Of course he was just as much obligated to look out for his own safety as the defendant was to prevent his being injured. While the law requires the defendant to move its cars with care, to the end that persons crossing the street may not be injured, it also requires such persons to exercise an equal amount of care to prevent being injured. If a person using the street fails to exercise this care and is injured, he cannot recover from the defendant * * * inasmuch as his own negligence contributed to it.” Little v. Third Ave. R. R. Co., 83 App. Div. 330.

The judgment should be reversed.

Judgment affirmed, with costs.