New York Telephone Co. v. Beckers

• Decision Date: 11 February 1929
• Docket Number: No. 45.,45.
• Citation: 30 F.2d 578
• Parties: NEW YORK TELEPHONE CO. v. BECKERS et al.
• Court: U.S. Court of Appeals — Second Circuit

30 F.2d 578 (1929)

NEW YORK TELEPHONE CO. v. BECKERS et al.

No. 45.

Circuit Court of Appeals, Second Circuit.

February 11, 1929.

Charles T. Russell, of New York City (Irving W. Young, Jr., of New York City, of counsel), for plaintiff in error.

E. C. Sherwood, of New York City (Clarence S. Zipp, of New York City, of counsel), for defendants in error.

Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

SWAN, Circuit Judge (after stating the facts as above).

At the close of the plaintiffs' case, and again at the close of all the evidence, the defendant made the customary motions to dismiss the complaint upon the ground that no negligence had been proved against the defendant, and that Beckers had affirmatively shown himself guilty of contributory negligence. The motions were denied, and those issues were decided adversely to the defendant by the verdict of a jury. We are now asked to set aside that verdict. This an appellate court cannot do, unless there is no credible evidence from which the conclusion of fact as found by the jury can be legally inferred. The citation of authorities for this long-established rule would be superfluous.

The questions presented make necessary a detailed examination of the plaintiffs' version of the accident. Beckers testified that he was driving north on South Broadway, and when about 10 or 15 feet from the curb line of the intersecting Carhart avenue he reduced his speed to about 15 miles an hour. He looked to the right and to the left for approaching traffic, and, seeing none, proceeded to advance across Carhart avenue at the same speed. At the time he looked he was about 5 feet south of the south curb line of Carhart avenue, and he says he could not see to the left more than 15 or 20 feet along Carhart avenue, because of shrubbery and a tree with low branches on the southwest corner. He first saw the defendant's truck when it was just about half way across South Broadway and when the seat of his own car had passed 3 or 4 feet beyond the south curb line of Carhart avenue. The truck was then only 5 feet away, and was proceeding in the center of the avenue at a speed which seemed to him 45 or 50 miles an hour. Neither car appears to have sounded any signal at any time.

Beckers attempted to avoid collision by swerving to the right, but his left front fender struck the side of the truck, throwing his car violently toward the right, so that his front wheels ran over the sidewalk and up a grassy bank of the premises at the southeast corner of the intersecting streets. The truck, he says, proceeded half way down the block before it was brought to a stop. Beckers' car was not overturned, nor was he thrown out; but he was thrown violently forward against the framework of his car, thus sustaining the injuries complained of. Although bruised and bleeding from cuts, he was able to get out of his car without help. The testimony of Burpo, the other witness for the plaintiffs, need not be recited; it presented certainly no stronger case than Beckers' own testimony. In fact, Burpo said that Beckers' car was going perhaps a little faster than the truck, and that the latter was stopped within 10 or 15 feet of the place of collision.

There was sufficient in this story to justify leaving to the jury the question of defendant's negligence. If the truck was proceeding at any such rate of speed as that to which Beckers testified, its driver was clearly negligent. Several witnesses contradicted Beckers as to the speed of the truck; but it is the jury's province, not ours, to weigh the testimony.

The only serious problem is whether the trial court should not have directed a verdict, on the ground that the evidence so conclusively proved contributory negligence as to be fatal to any recovery. Beckers says that, when he first looked to the right and left, he was about 5 feet south of the southerly curb of Carhart avenue. He explains that his view was obstructed so that he could see only 15 or 20 feet along the avenue toward the left. If we accept his statement of his distance from the curb — and he reiterated it at least three times — it is perfectly apparent that his view was not so limited as he says. The photographic exhibits, which disclose the physical conditions at the intersection, make it certain...