Webley v. City of New York

The action is to recover damages for wrongful death. Plaintiff’s intestate — a pedestrian — while on the crosswalk and proceeding from the north to the south side of Metropolitan Avenue, at the junction of Asean Avenue, in the borough of Queens, was struck either by the trolley ear owned by defendant The City of New York, and operated by defendant Gibbons, or by a cement mixer truck owned by defendant M. F. Hickey Co., Inc.., and operated by defendant Storey. Both, the trolley ear and the truck were proceeding easterly along Metropolitan Avenue. The complaint was dismissed at the close of plaintiff’s case, the court Biting there was no evidence of negligence on the part of the motorman or the operator of the truck. Judgment reversed on the law and a new trial granted, with costs to appellant to abide the event. Questions of fact as to defendants’ negligence and intestate’s freedom from contributory negligence arose during the trial which required the submission of the ease to the jury. Nolan, P. J., Carswell, Johnston and Sneed, JJ., concur; MaeCrate, J., not voting.