Woodward v. New York Railways Co.

Scott, J.:

The action is for damages received by plaintiff as the result of a collision between an electric car owned by defendant, and a light wagon which plaintiff was driving. That the motorman of the car was negligent is not denied, but it is claimed by defendant that the plaintiff was herself guilty of contributory negligence and for this reason should not recover.

On July 6, 1912, plaintiff, who says that she is an experienced horsewoman, was driving a single horse attached to a light wagon westwardly through One Hundred and Thirtieth street in the city of New York. As she approached Eighth avenue, when her horse’s head had just reached the crossing on the easterly side of the avenue, she looked uptown and saw a car approaching about one block away. Asked whether she formed an impression whether the car was going fast or slow she replied: “ I did not give it a thought.” She admitted that after she had seen the car she proceeded to drive across the avenue and never paid any more attention to the car until she had nearly crossed the tracks when she became conscious that the car was right upon her. In fact it struck the after part of the rear wheel, which indicates very clearly that if she had looked a second time she could easily have cleared the car, even if the motorman was negligent, as he undoubtedly was. Her mental attitude is shown by her own testimony which was that when she first saw the car, and before she had started to cross the avenue, she thought: “Well, it is going pretty good; I have a good show to get across.”

In my opinion on the plaintiff’s own evidence, and I have quoted only from that, she was clearly guilty of contributory negligence. It has frequently been so held in many similar cases.

In Tully v. New York City R. Co. (127 App. Div. 688) the circumstances were much the same as in the present case except that the plaintiff was a pedestrian. This court said: “ The truth is, the plaintiff, according to her testimony, paid no attention to "her own safety after she left the corner, and, therefore, her conduct does not sustain a legal inference that she exercised the degree of care which the law imposed upon her, and a finding of the jury to the contrary is based solely upon speculation and nothing else. * * * Plaintiff, as already suggested, was as much bound to look out for herself as the motorman was. She could not, having observed a car approaching, heedlessly cross the street and pay no attention to it, because the motorman had as much right to assume that she would keep out of the way of the car as she had to assume that the motorman would so control the car that it would not injure her.”

To the same effect are Bernstein v. N. Y. City R. Co. (92 N. Y. Supp. 228); Lynch v. Third Ave. R. R. Co. (88 App. Div. 604); Litzour v. New York City R. Co. (116 id. 477); Baxter v. Auburn & Syracuse El. R. R. Co. (190 N. Y. 439, 443).

It is true that a traveler on the highway is not subject to the same obligation to “ stop, look and listen ” for street cars as for steam cars, but he is under some obligation to use reasonable precaution for his own safety, and may not, without imputation of negligence, rely solely upon the driver or motorman of a street car to avoid collision. What especially convicts the plaintiff of negligence is that she actually saw the car coming and speculated, as she says herself, whether or not she had time to cross in front of it.

If the situation when she first saw the car was such as to raise a question in her own mind as to the probability of a safe crossing in case she attempted to drive in front of the car, it was sheer negligence and nothing else to drive blindly on without taking a second look before she placed herself in a position of danger.

The verdict of the jury was directly contrary to the. law of the case as charged by the court, and was also contrary to the evidence.

The judgment and order appealed from should be reversed and this complaint dismissed, with costs to the appellant.

McLaughlin and Clarke, JJ., concurred; Ingraham, P. J., and Laughlin, J., dissented.