McClain v. Brooklyn City R. Co.

• Decision Date: 26 November 1889
• Parties: McCLAIN v. BROOKLYN CITY R. CO.
• Court: New York Court of Appeals Court of Appeals

116 N.Y. 459

22 N.E. 1062

McCLAIN

v.BROOKLYN CITY R. CO.¹

Court of Appeals of New York,

Second Division.

Nov. 26, 1889.

Appeal from supreme court, general term, second department.

Action by John McClain against the Brooklyn City Railroad Company. A judgment for plaintiff was affirmed by the general term of the supreme court, and defendant appeals.

Samuel D. Morris, for appellant.

Charles J. Patterson, for respondent.

BRADLEY, J.

The action was brought to recover for personal injuries of the plaintiff, alleged to have been occasioned solely by the negligence of the defendant. On January 24, 1885, when the plaintiff, with a small boy in his arms, was proceeding to cross Fulton street, in the city of Brooklyn, on foot, he was overtaken and knocked down by a team of horses drawing one of the defendant's street-cars. This occurred between 5 and 6 o'clock in the afternoon, when the cars there were closely following each other, and thus materially interrupting passage across the street. The plaintiff, after waiting several minutes on the east side of Fulton street for an opportunity to cross over it, stepped behind and close to a car on its way out of what was known as the ‘Bridge Depot Switch’ into and southerly up Fulton street, and followed it closely until the car reached the latter street and partially halted, and then the plaintiff started to go across to the west side of the street. He nearly reached the outer rail of the up track, when he was run against by the off-side horse of the team of a car which came out of the switch on another track into Fulton street, a short distance back, northerly of the place where the car which the plaintiff followed entered it, and was proceeding in the same direction.

While the defendant had the right to run its cars upon the street, its duty was to use reasonable care, so as to do no unnecessary injury to persons traveling upon it. Whether the defendant was on this occasion chargeable with negligence was a question of fact properly submitted to the jury. There was evidence tending to prove that the defendant's driver of the horses attached to the approaching car saw the plaintiff on the track in advance of the team, and had the opportunity to observe the danger in which the rapid progress of the horses might place him, and yet made no effort to slack their movement or deviate their course so as to avoid the collision, although the plaintiff was at or near the outer rail at the time it occurred, but that, on the contrary, the speed of the horses was accelerated very considerably as they approached him. The circumstances, as represented by the evidence on the part of the plaintiff, warranted the conclusion that, by the exercise of the reasonable care which it was the duty of the defendant's driver to observe, the injury would have been avoided.

But this fault on the part of the defendant did not charge it with liability, unless the plaintiff was free from negligence contributing to the calamity. This was a close and the more difficult question upon the evidence. The plaintiff was some what familiar with the situation in that locality, and knew something of the extent of street-car service there. He was therefore able to appreciate the necessity of careful observation in going upon the street to keep out of the way of moving cars, and to see that his course was clear. For that purpose it was incumbent on him to use due care. His precautionary duty in that respect for his protection may not have been so great as that imposed upon one crossing a steam-car railroad, because a train on the latter is not subject to control, as is, to some extent, the team drawing a street-car. But, as a street-car must continue on the rails of its track, persons otherwise traveling on the street are required to use care to keep out of its way; yet for their protection the duty rests upon the driver to keep his horses reasonably within his control upon the public streets. Adolph v. Railroad Co., 76 N. Y. 530;Moebus v. Herrmann, 108 N. Y. 349, 15 N. E. Rep. 415. If by the exercise of reasonable care the plaintiff could have seen the approaching car, and ought to have apprehended the danger of the situation, he was chargeable with negligence, for he was not at liberty to take even doubtful chances of the consequences of crossing the track in the face of danger, or in reliance upon the successful attempt of the driver to slack the speed of the horses. Barker v. Savage, 45 N. Y. 191;Belton v. Baxter, 54 N. Y. 245;Davenport v. Railroad Co., 100 N. Y. 632, 3 N. E. Rep. 305.

The contention on the part of the defense that, if he had looked in the direction from which it was coming, the plaintiff would have seen the approaching car, had the support of evidence, and upon that fact is based the charge that he was negligent. The plaintiff says that, when the car which he followed slacked up, he looked both ways on the Fulton-Street track, and saw a car drawn by three horses, headed southerly upon the track which he attempted to cross; that it had come almost to a stand-still 12 or 15 feet from where he was; that he then started to go across the track, and was knocked down, as before stated. It seems that the car drawn by the horses which came in collision with him came out of the bridge depot switch on a curve from the north-east, and entered upon the Fulton-Street track in front of the three-horse car before mentioned, so as to drop in behind the car the plaintiff had been following. He also testified that he did not see the car or horses by which he was struck down, and did not know where it came from. If, when he started from behind the car to cross, he had looked back upon the switch track by which the approaching car entered that on Fulton street, the plaintiff may have seen the car coming. But, seeing the car halting but a short distance from him, he may have been led to suppose that there was no danger from any other source in that direction, and therefore he failed to observe the car coming on the intermediate entering switch, the junction of which with the main track, evidently, was near the place from which he then started to cross the track. That situation, in view of the expeditious movement required by him to get across the track, furnished some excuse to the plaintiff for not making a more searching observation than he says he did make before starting to cross over to the west side of the street. The distance at that time of the horses of that car from him must have been short, as he was struck before he was able to completely cross the track on which they came up behind and to him. But the fact that the horses were struck, as the evidence tends to prove they were, by the defendant's trackman, and by the driver, when they were proceeding on the curve in to the main track, and thus put into rapid movement, lessened the time of their approach to the plaintiff, and for his opportunity to escape by crossing in advance of them. The situation, as represented by one of the plaintiff's witnesses, was that when the plaintiff ‘got to the track nearest the sidewalk the car that struck him came out of the second switch on the up track.’ ‘The right-hand horse was on a run,-he went faster after the man hit him’ with the iron. The witness thought the driver struck the horse, and added that the horse which came against the plaintiff was on a run. It may have been inferred from the evidence that, but for the...