Bauman v. Black & White Town Taxis Co.

• Decision Date: 14 January 1920
• Docket Number: 87.
• Citation: 263 F. 554
• Court: U.S. Court of Appeals — Second Circuit
• Parties: BAUMAN v. BLACK & WHITE TOWN TAXIS CO.

263 F. 554

BAUMAN v. BLACK & WHITE TOWN TAXIS CO.

No. 87.

United States Court of Appeals, Second Circuit.

January 14, 1920

George W. Smyth, of New York City, for plaintiff in error.

Wing &amp Wing, of New York City (Arthur K. Wing and Charles G. Hill both of New York City, of counsel), for defendant in error.

Before WARD, HOUGH, and MANTON, Circuit Judges.

MANTON Circuit Judge.

Fifth and Sixth avenues, in the borough of Manhattan, city of New York, run substantially north and south. Forty-Third street runs substantially east and west. Plaintiff in error, a pedestrian, on the 9th of May, 1918, in the mid-afternoon walked on the southerly side of West Forty-Third street between Fifth and Sixth avenues, until he reached a point in front of Stern's department store, and then endeavored to cross the street, where he was struck and injured. At this point there is a semicircular driveway crossing the sidewalk and going to the building line in front of Stern Bros.' department store. Such driveway is used by vehicles of patrons of this store. When the plaintiff in error had reached a point about 25 feet east of the easterly end of this driveway, he attempted to cross the street to go to a drug store, apparently on the north side of the street, for a headache powder. At this time there were six vehicles along the south curb and west of the westerly entrance of the driveway to Stern Bros.' store. The nearest of these vehicles was about 75 feet from the point where the plaintiff in error attempted to cross the street. On the north curb of the street, there were a like number of vehicles standing in the opposite position to those on the south curb of Forty-Third street. Likewise there were vehicles standing on both curbs to the east of Stern Bros.' driveway.

Plaintiff in error says he had a clear view to the west of about 75 feet, and when he got in the middle of the street (between the curbs) he could see down to Sixth avenue. He also measures the distance of his view as between 200 and 225 feet. The distance from curb to curb was 30 feet. Forty-Third street is a much-traveled city street, and especially at this time of day. Before attempting to cross, and as he left the curb, plaintiff in error looked both to the east and west, and saw no motor car approaching. His view, as he looked to the west, was somewhat obstructed by the vehicles in the street. He says he saw at least a distance of 125 feet to the west before starting across. He walked at his 'regular rate of speed.' He enjoyed good eyesight and hearing. He heard no signal or warning of the approach of the taxicab which subsequently struck him; and while walking directly north, having passed the center line of the street at a point 4 to 6 feet north of the center line, he heard a shout, and then was immediately struck and knocked down by the right mud guard of the defendant in error's taxicab, which was proceeding at a fast rate of speed from the west and on the north side of Forty-Third street. After striking the plaintiff in error, the taxicab proceeded 25 to 35 feet before stopping. Plaintiff in error was seriously and permanently injured.

The plaintiff in error called one witness in corroboration of his own testimony, and the evidence adduced substantially established the foregoing facts. At the end of the plaintiff in error's case, a motion was made to dismiss the complaint, which the District Judge granted. Thereafter permission was granted to the defendant in error to rest its case without proof, and a motion was made for the direction of a verdict, and this was granted by the District Judge, with the comment that there was plenty of opportunity for plaintiff in error to see the taxicab and he could not escape the charge of contributory negligence.

In reviewing the correctness of the ruling of the court below the plaintiff in error is...