Knapp v. Barrett

• Decision Date: 16 November 1915
• Citation: 110 N.E. 428,216 N.Y. 226
• Parties: KNAPP, v. BARRETT.
• Court: New York Court of Appeals Court of Appeals

216 N.Y. 226

110 N.E. 428

KNAPP,

v.BARRETT.

Court of Appeals of New York.

Nov. 16, 1915.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Alois Knapp against William M. Barrett, as president of the Adams Express Company. From a judgment (160 App.Div. 877, 144 N.Y.Supp. 1123) for plaintiff, defendant appeals. Reversed.

E. Clyde Sherwood, of New York City, for appellant.

Thomas G. Prioleau, of New York City, for respondent.

CARDOZO.

[1] The plaintiff was struck by the shaft of the defendant's wagon, and suffered injuries for which he sues. He left a street car at the junction of Watts and West streets, in the city of New York. The rear end of the car was about 30 feet from the crosswalk. Another passenger, noticing that he was old and feeble, helped him to the ground. He stepped from the rear platform and the left side of the car, and began to walk to the south side of the street. We may assume, in view of his infirmities, that he moved slowly. He says that before starting he looked both ways, and that no vehicles were in sight. He took three or four steps, and while standing in some deep snow was struck by an express wagon, which came from the west. The horse, it is said, was “galloping at a mad rate.” That is the plaintiff's version. The defendant's witnesses tell a different story. They say that, when the plaintiff was about a foot and a half away from the car, the horse was only a few feet to the west, and that the plaintiff, with his overcoat collar turned up and his hat pulled down over his eyes, walked directly in front of the horse, then going at a moderate trot. the case, we think, was for the jury, and the court did not err in refusing to dismiss the complaint.

[2] The defendant insists, however, that there was error in the charge, and we are constrained to hold that this is true. The trial judge said to the jury:

“This plaintiff was under no duty to do any particular thing or to abstain from any particular thing. He was, however, under a duty to exercise ordinary care for his own safety. The law did not require that he should look at all-the law did not, you understand, gentlemen; but if he tells you what he did, and, among other things, that he failed to look, for instance, although he does not say that, you have a right to consider the circumstance. In other words, you have a right to consider all the circumstances, and, while the law does not prescribe that he has to do anything at all, the law does not provide that he should do any particular, specific thing, only in general terms that he should exercise ordinary care for his own safety, and that, if he is injured through a failure to exercise ordinary care for his own safety, as a cause of the accident, then he cannot recover. Now, in this steam railroad case the law says that every man before he steps on a railroad track must look and listen. That is in cases where it is a steam railroad; so that he law says there that he must look and listen. But here in New York City, where we have no steam railroads in the streets ordinarily, no man need look and listen as a matter of law; but that does not mean that he should not do it as a matter of fact, gentlemen. When I say that the law requires it, that is one matter. The law may not, but ordinary care may, and what the facts are you must determine, and whether, as a matter of fact, he was negligent because he acted as he did under the circumstances, or failed to act as he failed to act, is for the jury to determine; but, as I have stated to you, gentlemen, remember I am only charging you with respect to what the law requires. The law requires of no man the doing of any specific act under any circumstances such as were present here.”

The defendant's counsel excepted to these instructions, but the trial judge refused to change them, and, indeed, restated them.

“I refuse to charge,” he said, “that the plaintiff was bound to look as a matter of law, or to do anything as a matter of law, gentlemen; but I do not say that he ought not to look as a matter of fact. That is for you, gentlemen, to determine.”

We think that under the decisions in this state these rulings were erroneous. The jury were told, in effect, that even if the plaintiff left the car without looking where he was going, and then walked blindly in the path of the wagon, they might still acquit him of negligence. The law, we think, is otherwise. A wayfarer is not at liberty to close his eyes in crossing a city street. His duty is to use his eyes, and thus protect himself from danger. Barker v. Savage, 45 N.Y. 191, 6 Am.Rep. 66.

[3][4] The law does not say how often he must look, or precisely how far, or when or from where. If, for example, he 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. If he has used his eyes, and has miscalculated the danger, he may still be free from fault. Buhrens v. Dry Dock, E.B. & B.R.R.Co., 53 Hun, 571, 6 N.Y.Supp. 224;Id., 125 N.Y. 702, 26 N.E. 752.

[5] But it is a very different thing to say that he is not bound to look at all. We have repeatedly held that one who crosses a city street without any exercise of his faculty of sight is negligent as a matter of law. Barker v. Savage, supra;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;McClain v. Brooklyn City R.R. Co., 116 N.Y. 459, 470, 22 N.E. 1062;Reed v. Met. St. Ry. Co., 180 N.Y. 315, 73 N.E. 41;Volosko v. Interurban St. Ry. Co., 190 N.Y. 206, 82 N.E. 1090, 15 L.R.A. (N.S.) 1117;Zucker v. Whitridge, 205 N.Y. 50, 98 N.E. 209, 41 L.R.A. (N.S.) 683, Ann.Cas.1913D, 1250;Mastin v. City of New York, 201 N.Y. 81, 94 N.E. 611, ...