Epstein v. Brooklyn, Queens Count & Suburban Railroad

Burr, J. (dissenting):

I dissent. On the day of the accident plaintiff’s parents wished to take a car on Jamaica avenue, upon which street they resided, going toward New York. To do this they had to cross the tracks upon which the car coming from New York ran, plaintiff’s mother having him in her arms. '.She testified that she looked up and down the street to see if any ears were coming; that she saw a car to her right (the car going to New York), but that she did not see any car on her left (the car coming from New York, and the car which struck her).' She walked along,, and as she was about to step onto the track she was struck by the running board on the right-hand side of the •car and thrown down, and plaintiff was injured. There may have been sufficient evidence of defendant’s negligence to go to the jury, but I can see no evidence of. the slightest care upon the part of plaintiff’^ mother, and her negligence must' be imputed to him and is sufficient to defeat this action; It is true that she says that before she stepped upon the track she looked and did not see the car approaching on her left, but if she did look she did not look intelligently, for the car was coming and there was nothing to obstruct her view. Plaintiff’s father and mother tried to convey the impression that the view was obstructed, first, by a turn in the road, and,- second, by a bridge of the elevated railroad across the street. The photographs (Exhibits 1 and 2) which plaintiff offered in evidence show that neither of these was any obstruction whatever to a person approaching the track, although possibly they may have, been tó a person on the curb. ' Plaintiff’s father admitted that the-turn in the road, which the photograph shows was slight, was fifty-feet from the place where the accident occurred, and that the elevated structure was ten feet low.” There is no *63proof that the point of the accident was either at or near a street intersecting Jamaica avenue, and the photograph would indicate that such was not the case. The question of the speed of the car has nothing to do with the contributory negligence of plaintiff’s mother. Whether the car was going rapidly or slowly would not have prevented her from seeing the same, and she should have refrained from stepping forward while the car was approaching. The fact that she was not struck by the fender or the front part of the car, hut that she came' into collision with the running hoard upon the side, clearly demonstrates that she heedlessly walked into the side of a moving car.

I think that the judgment should be affirmed, with costs.

Jenks, P. J., concurred.

Judgment reversed and new trial granted, costs to abide the event.