Peteroson v. P. Ballantine & Sons

• Decision Date: 19 March 1912
• Citation: 205 N.Y. 29,98 N.E. 202
• Parties: PETEROSON v. P. BALLANTINE & SONS.
• Court: New York Court of Appeals Court of Appeals

205 N.Y. 29

98 N.E. 202

PETEROSON

v.P. BALLANTINE & SONS.

Court of Appeals of New York.

March 19, 1912.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Albert Peterson, as administrator, against P. Ballantine & Sons. From a judgment of the Appellate Division (141 App. Div. 920,125 N. Y. Supp. 1140) affirming a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

Grant C. Fox, of New York City, for appellant.

Martin T. Manton, of New York City, for respondent.

GRAY, J.

The Appellate Division, by a divided court, has affirmed a judgment in favor of the plaintiff, upon the verdict of a jury, in an action brought to recover damages of the defendant upon a charge of negligence. The plaintiff alleged that the death of his intestate was caused by the negligent driving of the horses attached to a wagon, belonging to the defendant, in one of the streets of the borough of Broklyn, and that the deceased did not contribute to the result by any negligence on his part. The accident occurred in the daytime, while the deceased was crossing Forty-Second street, between Third and Second avenues. One of the defendant's brewery wagons, drawn by a pair of horses and driven by one of its men, was coming from Third avenue, at the time. The horses came into collision with the deceased, who fell and was run over by one of the front wheels of the wagon. While the way in which the accident happened was disputed, the evidence for the plaintiff warranted the jury in finding it to have been as state. The testimony of plaintiff's chief witness of the occurrence justified the jurors in believing that the horses were being driven at a fast gait and that the driver and a fellow servant, occupying the seat with him, were looking over their shoulders, in the direction of where an organ grinder was playing. Upon the question of the negligence of the defendant's servants, there is no serious contention. They were inattentive and failed in their duty, while driving through the public street, to be watchful lest they should cause injury to others, having equal rights to be there.

[1] But the plaintiff was wholly unable to support the allegation of his complaint by any evidence proving, or tending to show, that the deceased did not contribute to the accident. It was shown by the same witness to whom reference has been made, a Mrs. McLoughlin, that she was at the window of her house, when the deceased was leaving the sidewalk and started to cross the street. When he got to a point about the middle of the street, the horses were coming fast towards him, and she saw him struck down by them. She says that he had ‘a heavy overcoat turned up and a heavy ear cap down.’ The witness narrated the occurrence, as she watched it from her window, from the time he left the sidewalk. From her account it appears that the deceased ‘did not go straight. He went * * * slanting * * * more towards Third avenue,’ in ‘the direction from which the horses were coming.’ There was ‘a clear space’ between him and them. There ‘was nothing to prevent him from seeing the brewery horses.’ He walked at ‘the same gait all the time, * * * until he was struck.’ She was asked and answered the following questions: ‘Q. At that time did you see him look towards the brewery horses? A. No, sir. I did not. He was going right straight across. Q. Was he looking up, or looking down, that you could see? A. He was looking right straight across ahead of him. Q. Right in front of him? A. Yes, sir; right ahead of him. He was going catercornered across the street. Q. You did not see him do anything at the time but keep on walking? A. No, sir. He did not move, only go right ahead. Q. Did not go any faster? A. No, sir.’ That was all of the evidence upon the subject of the conduct of the deceased, from the one witness upon whom the...