Curro v. Barrett

The evidence shows that the plaintiff, a boy of 15 years, at about half past 6 on the evening of October 13, 1913, was skating on roller skates upon the sidewalk at the corner of Market and Mon*290roe streets in the city of New York. As he approached the curb for the purpose of crossing the street at the regular crossing provided for pedestrians, he testified that he looked to see if there was any obstacle in the way, and saw an automobile express wagon of the defendant about half a block away coming toward the crossing. He proceeded to cross without looking any further, and when he had gone about 3 or 4 feet from the curb was struck by the automobile which knocked him down and ran over his legs. The plaintiff and his witnesses testified, also, that they heard no sound of horn or other signal as the automobile approached. The automobile went about 15 feet after it ran over the plaintiff before it stopped. At the close of tire plaintiff’s case the defendant rested, without putting in any additional proof, and moved for the direction of a verdict, which motion was granted.

. [1,2] I am of the opinion that there was a-question" of fact for-the jury to determine whether, under the circumstances proved, the accident was due to the negligent driving of the defendant’s servant or to the contributory negligence of the plaintiff. , It is held to be contributory negligence as a matter of law if the plaintiff blindly walks in front of a moving vehicle without looking to see if he could make a safe passage and without using any care to avoid injury. Peterson v. Ballantine & Sons, 205 N. Y. 29, 98 N. E. 202, 39 L. R. A. (N. S.) 1147; Perez v. Sandrowitz, 180 N. Y. 397, 73 N. E. 228. But the uncontradicted evidence here shows that the plaintiff- did look, and saw the vehicle half a block away when he left the curb. As stated by Judge Cardozo in Knapp v. Barrett, 216 N. Y. 226, 110 N. E. 428:

“His duty is to use Ms eyes, and thus protect himself from danger. Barker v. Savage, 45 N. Y. 191 [6 Am. Rep. 66]. The law does not say how often he must look, or precisely how far, or when, or from where. If, for example, Be looks as he starts to cross, and the way seems clear, he is not bound as a matter of law to look again. The law does not even say that, because he sees a wagon approaching, he must stop till it has passed. He may go forward unless it is close upon him; and whether he is negligent in going forward will be a question for the jury.”

Judgment appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.