Meyer v. Brooklyn, Queens County & Suburban Railroad

The plaintiff was driving a truck or business wagon loaded with wooden ware along Broadway in the borough of Brooklyn, on which the defendant maintains and operates a trolley railroad. He was driving southerly along the street in the right-hand or south-bound track intending to deliver some part of his load at a store, No. 585 Broadway, which was on the other side of the street. -Just before he reached a point opposite the store he turned to cross the railroad track and had proceeded so far across that only either the hind wheels of the vehicle or the projecting part of his load was in the line of north-bound track when the loaded vehicle was struck by a northbound car and the plaintiff thrown to the ground. For the injuries then caused to his person and to his property the plaintiff brought this action.

We are of opinion that the court should not have held as matter of law that the plaintiff was guilty of contributory negligence, but submitted that question to the jury. The chief reliance of the respondent is on the case of Meyer v. Brooklyn Heights R. R. Co. (9 App. Div. 79), decided by this court. In that case the plaintiff was driving a buggy along Fulton street, in the borough of Brooklyn, and when about seventy-five feet distant from a cross *288street started diagonally on a walk to cross the tracks. - At that time a car was approaching from the opposite direction and was about one hundred and fifty 'feet away. We held that the .plaintiff was guilty of contributory negligence which precluded a recovery. But this case is markedly different. It is true that the plaintiff did not start to cross the intervening track exactly at right angles, but the variation from a direct crossing was but slight and was rendered necessary, by the character of the vehicle which he> was driving and its load. The horse^and vehicle occupied a space of some sixteen feet, and it would be necessary to straighten them out alongside of the curb when they reached the store or shop where part of the load was to be delivered. For this reason a deviation from an absolutely perpendicular crossing may have been justified. The plaintiff testifies that, at the time he started to cross, no car was in sight. His witnesses place the distance of the car at the time he reached the north-bound track at from seventy-five to two hundred feet. On this appeal the plaintiff is entitled to have the evidence in his behalf considered in the most favorable light in which a jury could have viewed it. Besides this there remains the undisputed fact that though the plaintiff was driving at a slow walk with a loaded vehicle, the horse and the greater part of the vehicle had passed beyond the track at the time of the collision. From this fact we. think a jury might well find that, when the head of the horse was either on the track or so near it as to indicate the intention of the plaintiff to cross, the car must have been at such a distance away that, had it been properly managed, the collision would have been avoided..

The judgment appealed from should be reversed and a new trial granted, costs to abide the event.

All concurred, except Goodrich, P. J., who read for affirmance.

I cannot see enough difference between this case and Meyer v. Brooklyn Heights R. R. Co. (9 App. Div. 79) to warrant the. conclusion reachéd by Mr. Justice Cullen.

In the latter case the plaintiff was driving up Fulton street at night. Wishing to cross the diowntown track he looked up and saw *289it brightly-lighted car coming down on that track 150 feet away. He gave no sign to the motorman of his intention to cross, but walked his horse across the track diagonally for a distance of two houses when his carriage was struck by the car. The front of the •carriage was struck. (See record.)

In the present case, at a crossing somewhat similar, the plaintiff, who was either in the uptown track or just outside of it, desiring to •cross the downtown track, looked, as he says, saw no car and then -attempted to cross that track. The rear wheel of' his vehicle was -struck. When his horse was on the down track and the wagon yet •on the uptown track he saw a car approaching. Evidently that car must have been visible by him when he says he first looked, so that the old doctrine respecting a man looking and not seeing or not looking, to see ought to apply.

I make this suggestion, believing this case to be “ perilously near ” "the other Meyer case.

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