Lampe v. Simpson

The elevated railway in the center of Third Avenue with its piers and supports divided the avenue practically into three separate ways, each about twenty-four feet wide, one between the supports and under the elevated railway, upon which was a northbound and a southbound trolley track, each track being near the piers and supports, and on each side of this way was an open way. All of these ways were used for vehicular traffic. The distance of these piers and supports from each other and their dimensions are such as to enable a traveler crossing on foot from the east curb to the west to see a trolley car or other vehicle approaching under the railway from either direction for over three hundred feet, and likewise such as to enable a motorman of the trolley car or a driver of any vehicle along the trolley tracks to see a traveler after he leaves either curb and while he is crossing the street. The defendant's truck was being driven northerly along this avenue upon the northbound or easterly trolley track. The plaintiff, as he was about to step from the east curb to cross the avenue, looked to the south to see if automobiles were approaching and saw defendant's truck approaching about two hundred and fifty feet distant; he then walked across the easterly way or section of the avenue. When he reached the pillar supporting the railway tracks he did not look to the south, and had not looked to the south for the approaching *Page 360 truck since he was about to leave the east curb; he did look to the north for approaching traffic and seeing none was in the act of stepping on the trolley track when the right side of defendant's truck struck him.

I am of the opinion that the man of ordinary prudence under the same circumstances, conscious as he must have been of the liability of this truck to reach the point of his crossing before he could pass the twenty-eight feet required to avoid it while the truck was traveling the two hundred and fifty feet, would have again looked for the approaching truck before attempting to cross the trolley track. In not so looking the plaintiff failed to exercise reasonable care and his failure was clearly a proximate cause of his injuries. The motion to set aside the verdict should have been granted.

In this opinion MALTBIE, J., concurred.