Ploxin v. Brooklyn Heights R. Co.
| Decision Date | 12 November 1919 |
| Docket Number | 34. |
| Citation | 261 F. 854 |
| Parties | PLOXIN v. BROOKLYN HEIGHTS R. CO. |
| Court | U.S. Court of Appeals — Second Circuit |
Thomas J. O'Neill, of New York City (Leonard F. Fish, of New York City, of counsel), for plaintiff in error.
George D. Yeomans, of Brooklyn, N.Y. (John L. Wells, of New York City, of counsel), for defendant in error.
Before WARD, ROGERS, and MANTON, Circuit Judges.
The plaintiff in error sued out this writ of error, asking to review a dismissal of the complaint in her action brought to recover damages for the loss of life of Louis Ploxin, her husband.
On September 1, 1914, the deceased was crossing Fulton street from the south to the north side, and was struck by a car approaching from the east, causing injuries which resulted in his death shortly thereafter. An action was commenced in the state Supreme Court for Westchester county. A verdict was had. An appeal thereafter taken to the Appellate Division resulted in a reversal of the judgment and a dismissal of the complaint, upon the ground that the intestate was guilty of negligence as a matter of law. The plaintiff in error then appealed to the Court of Appeals of the state of New York, in which court the order of dismissal was affirmed. She then commenced this suit in the District Court for the Southern District of New York, and after a trial, in which both the plaintiff in error and defendant in error submitted their proofs, the District Judge dismissed the complaint.
It is conceded that the proof offered on this trial in the District Court is different from that presented in the state court. The plaintiff in error's contention is that there is additional proof and amplification of the old. The contention of the defendant in error is that the new proof but makes more difficult the plaintiff in error's opportunity for success. Since there was a dismissal of the complaint in the state court, which was not upon the merits but for failure of proof, that action is not a bar to the maintenance of this suit in the District Court of the United States. Bingham v. Wilkins, 3 Fed.Cas. 407, No 1416; Wheeler v. Ruchman, 51 N.Y. 391; Hopesdale v. Storage Co., 132 A.D. 348, 116 N.Y.Supp. 859.
Fulton street runs substantially east and west at the point of the accident. There are two car tracks thereon, one for the east and one for the west bound traffic. Between Lawrence street on the east and Jay street on the west, there is a trolley station where passengers alight from and board passing Fulton street cars. Just before the occurrence, the deceased was seen walking across the street from the south to the north side. He was struck while proceeding across the west-bound track, which runs on the northerly side of the street, and there is evidence that he was passing over the northerly rail of the west-bound track when struck. There is a dispute as to whether he was passing straight across to the trolley station, or whether he was moving in a diagonal direction. There is evidence which supports the claim of the plaintiff however, that he was proceeding straight across to the pole upon which is the sign 'Trolley Station.' This pole was approximately in the middle of the block between Lawrence and Jay streets, and about 114 feet west of the sidewalk line of Lawrence street. Lawrence street, from curb to curb, is about 35 feet. From the curb on the east line of Lawrence street to the building line, the sidewalk is about 15 feet more; therefore, from the east side of Lawrence street, the point of accident was distant about 165 feet. Fulton street is about 43 feet from curb to curb. It is 13 feet 9 inches from the south curb to the first track, and 23 feet 6 inches from the curb on the south side to the first rail of the west-bound track, and about 28 feet 3 inches from the south curb to the northerly rail of the west-bound track. The accident occurred between 7:30 and 8 o'clock in the evening, and at this time it was dusk. There is evidence that, when the deceased left the curb, he was seen to turn his head to the right and proceeded to cross, and that at this time the west-bound trolley car, which struck him, was not in the block, but about two...
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