Bello v. Metropolitan Street Railway Co.

(dissenting) :

, I dissent on the ground that the questions of negligence and of contributory negligence were for the jury.

' To recover damages for injuries sustained in an action of this kind the burden is upon the plaintiff to prove by a fair preponderance of evidence that the acfcident occurred solely through the negligence of the defendant and that the person injured was free from contributory negligence. Upon the first proposition it is insisted that this evidence shows that the driver of the defendant’s car was negligent in not observing the plaintiff’s intestate on the track until he was run over; in not heeding the warning to stop the car; in being inattentive to what was happening ahead of him, and in turning his head to the side, loudly talking .to some one on the platform, and in not bringing the car to a stop when he had ample opportunity so to do, and could have averted injury to the boy. If such inferences can be properly drawn from the testimony, then, ’ upon this branch of the case, as to defendant’s negligence, there was .sufficient to go to the jury.

We think, however, that the plaintiff’s counsel overstates the inference so to be drawn. As said in Reich v. Union Ry. Co. (78 Hun, 418): “ The motorman * * * had no right to expect or anticipate the fact that this boy was going to cross the track in the middle of the block. He, undoubtedly, under the rules, was required to be more vigilant at the crossing, where he might naturally expect parties to cross the track, than in the middle of the block.” As correctly urged by the respondent, the conduct of the driver prior to the time the boy fell is perfectly immaterial. If the boy calculated to cross before the car reached him, the driver of the car was entitled to the benefit of that calculation. He was entitled to assume that the boy would safely cross. It here appears that the boy, in the middle of the block, at or about the place where there was at least one wagon, darted from the west side of the street intending to reach the east, and fell in the middle of the track and was overtaken by the car before he could rise, and was injured, not by the wheels passing over him, but by .the horses, or platform, or by'some of the chains or gearing connected with the brake. That the car was not going fast is conclusively proved by the fact that, as soon as an intimation was given that the boy was under the car, it was stopped before it had gone many feet. Considering the intelligence of the witnesses, and their incapacity to measure distances exactly, we think *318it reasonably certain from their testimony that the car was almost upon the boy at the time he fell, and that, in stating that, it would take but a second or a tenth of a second for the car to reach the boy after he fell, the witnesses testified on the question of time more accurately than when they attempted to give their measurements of twenty-five or fifty feet as the distance between the boy at the time he fell and the heads of the horses on the car. It is from the moment the boy fell on the track until the car struck him that the conduct of the driver is material. If, when the boy fell, the car ■could not possibly have been stopped in time to avert an accident, it is difficult to see upon what theory the negligence of the driver -could be predicated. . In this respect the plaintiff’s testimony was: “ At any rate he (the boy) would have had to get up and go away and get out of the way before that second or tenth of a second. That is all the time, the driver had to stop the car in.”

Considering the hour, the narrowness of the street, the fact of the presence of at least one wagon at. the place where, .the boy started to cross on a run, and the close proximity of the horses to the boy at the time he fell on the track, which' left but a second or a tenth •of a second within which the driver 'must act to avert the injury, •and that all the witnesses agree that the car was- stopped before the wheels reached the place where the boy was, showing that the ear was not going at a‘ very rapid rate, it left the inferences just as ■consistent with the absence as with .the presence of .negligence on •the part of the driver. If, however, we conclude that there was sufficient to go to the jury upon the question of the negligence of . 'the defendant, the question remains whether the burden was sustained of showing that the plaintiff’s intestate was free from contributory negligence.

The testimony, shows that the boy attempted, with the car •close upon him, to cross in the middle of the block a narrow street, taking the chances of getting over safely; and háving fallen and thus rendered his calculations unsuccessful, it can hardly be said that •sufficient evidence was presented from which the jury could-infer that the boy was free from contributory negligence. As said in Reynolds v. N. Y. C. & H. R. R. R. Co. (58 N. Y. 250): “It belongs to the definition of the cause of action that the injury must •have been occasioned solely by the negligence of the defendant; *319and either by direct proof given by the plaintiff or from the circumstances attending the injury, the jury must be authorized to find, affirmatively that the person injured was free from fault that contributed to the accident, or the action is not maintained. If this element is wanting in the case, the court may nonsuit or set aside a verdict for the plaintiff.’ And in Hart v. H. R. Bridge Co. (84 N. Y. 58) it was said: “ It is not enough to prove facts from which either the conclusion of negligence, or the absence of negligence, may be with equal fairness drawn.”

We think upon both propositions, relating to the negligence of the defendant,, and the freedom from contributory negligence of the decedent, that the inferences as to the presence or absence of negligence Were so equally balanced that it cannot be said that the burden which was upon the plaintiff was sustained, and that for this reason the dismissal of the complaint was proper, and the judgment should be affirmed, with costs.

Van Brunt, P. J., Patterson and Ingraham, JJ., concurred; Williams, J., dissented.

Judgment affirmed, with costs.