Fandel v. Third Avenue Railroad

Rumsey, J.:

The case was tried at a Trial Term in October, 1896. It is an action for damages sustained by the plaintiff by reason of the negligence of the defendant. It was submitted to the jury in a careful charge by the court, which was unexceptionable, and to which but three unimportant exceptions were taken, not argued or relied upon upon this appeal. There was one exception taken to the admission of evidence, but it is quite as unimportant as the exceptions to the charge. The only serious point made upon the trial is that upon the facts there was not sufficient proof to sustain the verdict, and for that reason it was error to send the case to the jury. The case, however, having been submitted to the jury, and their verdict having been given in favor of the plaintiff, she has the right to have this appeal considered upon the most favorable view that can be taken of the evidence adduced in her behalf and upon the theory that every fact as to which there was a contest was found in her favor by the jury. If there was evidence to sustain the facts so found, and if those facts are sufficient to establish her cause of action, she can hold the verdict which she obtained from the jury. In examining questions of this kind, it must be remembered that foot passengers as well as horsemen and those who operate street cars have equally a lawful right to use the street for all proper purposes and at all proper places. It is quite true that street cars which run upon rails laid down in the street and cannot turn out, and which are large and heavy vehicles moved by machinery, necessarily have to a considerable extent the right of way, and it is the duty of pedestrians to use reasonable care to avoid them ; but yet there is a corresponding duty on the part of the drivers of street cars, who must, in the exercise of due care, so control the speed of their cars and give such notice of the approach of their cars at places where pedestrians are using the street that such pedestrians can avoid them in the exercise of proper care. This duty is all the more stringently to be insisted upon in the case of corporations like the defendant, whose cars are of great weight and are run at a comparatively high rate of speed, so that great care''on the part of the gripman, as well as on the part of pedestrians, is required to avoid serious, if not fatal, accidents. These rules are so well settled as not to require the citation of any authority to establish them, and these are the rules which must be applied in the decision of this case.

As has been said, the facts in this case must be taken as much in favor of the plaintiff as the evidence would warrant. The accident occurred between half-past seven and half-past eight o’clock on the evening of May 4, 1894. It was after sundown, but was not yet dark. The plaintiff was struck by a car of the defendant’s, going up town, as she was attempting to cross Third avenue, at the crossing of Ninety-fifth street. It was testified by the plaintiff’s witnesses that, at the time she was struck, she was near or upon the north crosswalk. Her daughter, who was the first witness, testified positively that at the time of the collision she was at the crosswalk when she was struck. Her son testified to the same thing, as did the plaintiff herself. A disinterested witness, Michael Bogara, called on behalf of the plaintiff, testified positively, on his direct examination, that he saw her hit by the street car at the north crosswalk, and, while strenuous efforts were made upon cross-examination to get him to contradict himself upon that point, he persisted in the testimony, and his evidence was not shaken. This testimony was contradicted by the testimony of the witnesses on the part of the defendant, but it must be assumed that the jury found the fact to be as alleged and proved by the plaintiff.

It appeared that the plaintiff started from the west side of the street to go to the east side. When she approached the car tracks, a car was going down town upon the westerly track. That car was followed by a truck. The plaintiff stood near the track until the car and the truck had passed her; she then crossed the west track, and apparently became aware of a car coming from the south up town upon the east track. She stood between the two tracks while another car from the north passed down and the car from the south passed up. Behind the car going north, at a short distance, which is not precisely stated, was another car, also going north. This car, as it seems, was seen by the plaintiff before she attempted to cross the east track in front of it. Although she saw it approaching, she, nevertheless, attempted to cross the track in front of it, but she was struck while so doing, and it is necessary to examine particularly into the situation of affairs when she made that attempt to enable us to ascertain whether there was negligence on the part of the street car company which caused the accident, as well as a lack of contributory negligence on her part.

The plaintiff said, upon her examination, that she saw this car coming, and she thought she could cross; that the car was not going so fast when she stood between the tracks and saw it at the lower crossing, but it was going faster when it knocked her down. She said that she saw the car all the time, and she saw how fast it was coming, but, of course, that testimony must be taken in connection with the fact that she was almost directly in front of the car, and it would be difficult for her either to gauge the speed of the car or to say accurately whether it increased its speed after she started to cross the track. Of course, if her evidence is to be taken as absolutely conclusive, as seems to be insisted by the appellant, then as the jury found in her favor, it must be taken as conclusive, not only as to those points which tell against her, but as to" those points which tell for her, and taken in that way it establishes that there was an increase of speed in the car from the time she stood between the tracks and saw it at the crossing just below her, and the time when it struck her and knocked her down. But there is other evidence as to the speed of this car which is of considerable force. The conductor said that the car was going at the ordinary speed. Whether it was going as fast as the cable went he was not able to say. His testimony was corroborated by O’Connell, called on behalf of the defendant, who testified substantially to the same thing. There was other testimony to the effect that the car was going somewhat slowly, but all this testimony,' it must be remembered, was the impression formed on the mind of each witness at the particular time when he saw it, and whether that particular time was the moment when it struck the plaintiff, or shortly before, and just about the time she started to cross the track, is not in all cases easy to be ascertained. In actions like this, as is well known, there almost always are considerable discrepancies in the testimony of witnesses on points of time, rate of speed and distance, but these discrepancies are caused more by inability to judge accurately, and by the fact that witnesses do not all refer to the same time at which a thing occurred, than by any real difference in the fact, or even as to their judgment as to the fact. In cases like this, where the question is a question of fast or slow, it is impossible to say that a conelusion of the jury where there is evidence to sustain it is erroneous, but in the nature of things the court must adopt it. There was evidence in this case, besides that of the plaintiff, to sustain the proposition that the rate of speed of the car increased after the plaintiff started to cross the track. The evidence of her son, who stood looking at her, is precise upon that point. He says it was coining pretty fast when it struck her, but it went faster. He says that it went faster when it struck his mother than it did when he saw it at the lower crossing of the street. The jury believed the evidence of this boy as they had a right to do, and there is reason in the nature of things to suppose that the boy’s evidence was accurate. The ordinance requires street cars going up town to stop at the upper crossings of the cross streets, and it is quite natural and not at all unusual for the gripman to slacken the speed of his car in crossing the streets, not only by way of reasonable caution, that he may avoid vehicles that come out of the street to cross the avenue, but by way of proper preparation to stop at the crossing to let passengers on or off, and it is not at all improbable that, having slackened the speed of his car for the purpose, and not having received a signal to stop, he permitted the speed to again be accelerated as soon as he found that it was not necessary to stop at that crossing. To be sure, there is no evidence that this was the condition of affairs, but these considerations were legitimate for the jury, who are to judge of the weight to be given to testimony from their own experience and observation, and they are legitimate for courts to consider when they are called upon to decide upon the weight to be given to testimony. If it was established that this street cai accelerated its speed after the woman stepped upon the track, then we think that the jury had the right to find from that fact, in connection with the undisputed fact that she was struck by the car just as she had passed over the last rail, that she was not guilty of contributory negligence in attempting to cross as she did.

It appeared from the testimony that there were about two cars on each block. It was necessary for one attempting to cross the track to cross somewhat closely in front of any street car, and it was not contributory negligence, as a matter of law, to do so, unless the speed of the- car was so great and its proximity so close that the pedestrian would not probably be able to escape it. As is well known, even careful persons must, in pursuance of their ordinary avocations, cross the streets of this city in front of vehicles and moving cars, and to say that to do that constituted contributory negligence, as a matter of law, would put an embargo upon the streets so far as pedestrians are concerned. We think, upon the facts as the jury might have found them, the plaintiff was not guilty of any contributory negligence.

The daughter of the plaintiff testified that no- signal of the approach of this car was given, and the jury were at liberty to believe her testimony in that regard. If that fact be taken in connection with the further fact that the speed of the car was accelerated after the plaintiff attempted to cross the track, and when she must have been in plain sight of the gripman, we have a condition of affairs which would clearly warrant the jury in coming to a conclusion that there was negligence on the part of the defendant. A very careful consideration of the other evidence leads us to the conclusion that, upon the whole case, the court was required to send the case to the jury, and the jury were warranted in the conclusion which they reached.

The judgment should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concurred; Patterson and Ingraham, JJ., dissented.