Lofsten v. Brooklyn Heights R. Co.

• Decision Date: 27 February 1906
• Citation: 184 N.Y. 148,76 N.E. 1035
• Parties: LOFSTEN v. BROOKLYN HEIGHTS R. CO.
• Court: New York Court of Appeals Court of Appeals

184 N.Y. 148

76 N.E. 1035

LOFSTEN

v.BROOKLYN HEIGHTS R. CO.

Court of Appeals of New York.

Feb. 27, 1906.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Charles Lofsten against the Brooklyn Heights Railroad Company. From a judgment of the Appellate Division (89 N. Y. Supp. 1042,97 App. Div. 395), affirming a judgment for plaintiff, defendant appeals. Reversed.

I. R. Oeland, H. F. Ives, and George D. Yeomans, for appellant.

James C. Cropsey and Benjamin F. Norris, for respondent.

HISCOCK, J.

Plaintiff recovered a small verdict for personal injuries sustained through being struck by one of defendant's cars as he was walking across one of its tracks in Fulton street in the borough of Brooklyn. We think that the evidence showed that he was guilty of contributory negligence as a matter of law, and that the judgment in his favor should be reversed.

Plaintiff recovered a small walked upon the east side of Hoyt street to Fulton street and there attempted to cross the latter street and defendant's tracks therein. It was about 7:30 in the morning, and apparently broad daylight. When he got to the curb upon the near side of Fulton street he looked and saw approaching at a distance of not to exceed 50 feet the car which afterward struck him. This car was proceeding at a rate of five or six miles an hour as described by the only witness who spoke definitely upon this subject. It was in the neighborhood of 14 feet from this curb from which plaintiff saw the car to the nearest rail of the track upon which he was struck according to his version there was nothing whatever to obstruct his view of the approaching car. Defendant's motorman asserted that there was a wagon which obscured his view of plaintiff, but the latter distinctly and expressly repudiated this statement. There was nothing except the ordinary traffic in the street which could distract his attention, nor was there any claim upon his part that anything did distract it. He was struck by the nearest forward corner of the car, but he seeks to mitigate the inference that he fairly walked into the car by the assertion that when he had reached the middle of the track, and saw the car upon him he stepped back a step. From the time plaintiff left the curb to the instant of the collision he never looked at or in the direction of the approaching car, or by any other method so far as appears took the slightest pains to ascertain where it was until a shout called his attention to it and looking up he saw it upon him.

Without any lengthy discussion of the principles applicable to these facts, we think it is clear that the plaintiff did not exercise ordinary prudence. The mere statement of his conduct impresses the mind at once that in utter disregard of all precautions, he placed himself in front of defendant's car. The car had only a comparatively few feet to go to cross the line of plaintiff's course when the latter left the curb. When he saw it, it was proceeding at a considerably more rapid pace than he was. By the time he had proceeded from the curb to the track the car had so covered its distance that it was practically upon him as he stepped upon the track. If he had...