I dissent. To justify the jury in rendering a verdict in favor of the plaintiff it had to find not only that the defendant was negligent, but that the intestate was free from negligence. The evidence was sufficient to justify a finding that defendant was negligent, but the record is absolutely barren of any evidence which would justify a finding that the intestate exercised any care whatever as to her own safety; on the contrary, the evidence is that she did not exercise any care from the time she left the sidewalk until she was struck by defendant's car. The plaintiff's witness Ida Monstein — and she was the only witness who gave any testimony as to the movements of the intestate from the time she left the sidewalk until she was struck — testified, referring to the intestate, as follows: "Q. Then the woman was just a short distance from you on the curb? A. Yes, sir. Q. And the truck was coming down? A. Yes, sir. Q. Then she stepped off the curb? A. Yes, sir. Q. And then she was hit? A. Yes, sir. *Page 206 Q. Did you see her look around at all? A. No; she never looked around."
It is suggested the jury might determine what this witness meant by her answer that "she never looked around." The words indicate as clearly as anything can what the witness had in mind and the idea she meant to convey. The ordinary meaning, in the absence of something to suggest to the contrary, must be given to the witness' answer and if so, it affirmatively appears the intestate did not look to ascertain whether a car was approaching. It was broad daylight. There was nothing to obstruct the intestate's view or distract her attention. The testimony above quoted was uncontradicted and its truthfulness had been certified to by the plaintiff's calling her as a witness. The jury, therefore, was not justified in disregarding it.
Before she attempted to cross the street she was bound to look for the purpose of ascertaining whether it was safe for her to do so. This court has repeatedly held that one who crosses a city street without exercising his faculty of sight is negligent as matter of law. (Ford v. N.Y. City Interborough Ry. Co.,236 N.Y. 346; Knapp v. Barrett, 216 N.Y. 226; Zucker v.Whitridge, 205 N.Y. 50; Peterson v. Ballantine Sons,205 N.Y. 29; Mastin v. City of New York, 201 N.Y. 81.)
To escape the legal effect of not looking before attempting to cross a street proof must be given that even if the injured person had looked the accident would still have happened. Here, there is no such proof. The only fair inference is that if she had looked the accident would have been avoided.
I am of the opinion the judgment is right and should be affirmed.
HISCOCK, Ch. J., CARDOZO, POUND, ANDREWS and LEHMAN, JJ., concur with CRANE, J.; McLAUGHLIN, J., reads dissenting opinion.
Judgment accordingly. *Page 207