Murphy v. Interurban Street Railway Co.

The complaint in this action was dismissed upon the plaintiff’s own testimony, aiid from an order denying a motion for a new trial the plaintiff appeals. Under such circumstances the plaintiff’s testimony must, with all the reasonable inferences that can be drawn therefrom, be taken as true. He testified that he lived near One Hundred and Twenty-fourth street on Second avenue, that he left his house at seven a. m., intending to take a south bound car on the avenue, that he walked to the comer of One Hundred and Twenty-fourth street, and while at the corner and on the sidewalk he, then being about to cross the avenue, looked both ways for approaching cars. Looking north, he saw a south bound car, between One Hundred and Twenty-fifth and One Hundred and Twenty-sixth streets, and looking south he saw a north bound car at the corner of *599One Hundred and Twenty-third street and Second avenue standing still. When he started to cross the street, along the north crosswalk, this car was a full block away. He proceeded and was hit by the north bound car as he stepped over the first or easterly rail. He estimates the distance from the curb to the easterly rail of the car track to he from. eighteen to twenty feet. He was walking “ the same as any one else would to get across the street.” He is supported in his version of how the accident happened by at least two witnesses; and it was shown that the car approached rapidly without any hell being rung, and that it was not stopped, after it hit the plaintiff, until near the middle of the block above One Hundred and Twenty-fourth street. Hnder the facts disclosed by the testimony, we do not think it can fairly he said that, as a matter of law, the plaintiff was guilty of contributory negligence, or that the defendant was free therefrom.

Levehtritt and Erlanger, JJ., concur.

Judgment reversed and new trial ordered with costs to appellant to abide event.