Baker v. Close

• Decision Date: 09 January 1912
• Citation: 97 N.E. 501,204 N.Y. 92
• Parties: BAKER v. CLOSE et al.
• Court: New York Court of Appeals Court of Appeals

204 N.Y. 92

97 N.E. 501

BAKER

v.CLOSE et al.

Court of Appeals of New York.

Jan. 9, 1912.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Mary E. Baker against William J. Close and others. From a judgment of the Appellate Division (137 App. 529, 121 N. Y. Supp. 1079), affirming a judgment for plaintiff, defendants appeal. Affirmed.

William D. Loucks, for appellants.

Edgar T. Brackett, for respondent.

WERNER, J.

The plaintiff was run down at a busy street crossing in Schenectady by an automobile owned by the defendants and driven by their employé. The collision occurred under circumstances which are variously narrated by different witnesses, but the negligence of the defendants' driver was practically conceded on the argument, and the most cursory perusal of the record discloses such a conflict of testimony as to the plaintiff's alleged contributory negligence that it clearly presented a question of fact upon which the verdict is conclusive. As there are no exceptions which merit discussion, this would be a proper case for affirmance, without opinion, were it not for the excellent opportunity it offers to restate a few familiar rules which, in this day of fast moving and powerful street vehicles propelled by mechanical energy, it is even more important for pedestrians and drivers to observe than it was in the earlier days, when carriages, wagons, and trucks were drawn exclusively by horses.

The duty of the wayfarer to look both ways, to listen, and, if necessary, to stop at a grade street crossing of a steam railroad, grows out of the obvious and constantly impending dangers which cannot always be avoided by drivers of steam engines drawing heavy trains at the high rate of speed which is necessary to insure efficient railroad service. The reason of the rule is so obvious that it needs neither explanation nor justification. In the nature of things the duty referred to must be imposed upon the wayfarer as a matter of law. It is different, however, as to the rights and duties of pedestrians and drivers in the use of crossings on our city streets. There, the right of passage is common to all, and both footmen and drivers are bound to exercise reasonable care for their own safety and the safety of others upon the street. The rigorous rule applicable to steam railroad crossings is necessarily relaxed at the usual street crossings, and the footman is not required, as matter of law, to look both ways and listen, but only to exercise such reasonable care as the case requires, for he has the right to assume that a driver will also exercise due care and approach the crossing with his vehicle under proper control. Buhrens v....