Reed v. Metro. St. Ry. Co.

• Decision Date: 24 January 1905
• Citation: 73 N.E. 41,180 N.Y. 315
• Parties: REED v. METROPOLITAN ST. RY. CO.
• Court: New York Court of Appeals Court of Appeals

180 N.Y. 315

73 N.E. 41

REED

v.METROPOLITAN ST. RY. CO.

Court of Appeals of New York.

Jan. 24, 1905.

Appeal from Supreme Court, Appellate Division, First Department.

Action by John J. Reed against the Metropolitan Street Railway Company. From a judgment of the Appellate Division (84 N. Y. Supp. 454,87 App. Div. 427) affirming a judgment in favor of plaintiff, defendant appeals. Reversed.

Bayard H. Ames, Charles F. Brown, and Henry A. Robinson, for appellant.

S. K. Lichtenstein and Henry M. Wise, for respondent.

BARTLETT, J.

The plaintiff seeks in this action to recover damages for personal injuries due to the alleged negligence of the defendant. The plaintiff on the afternoon of March 27, 1900, at about 5 o'clock, in broad daylight, alighted from an Eighth avenue car, north-bound, at the corner of Eighty-First street and Central Park West. The defendant has at this point two tracks. The north-bound cars are run upon the easterly track, which is located so near the curbstone as to enable passengers alighting to step upon the sidewalk. The westerly track is used for the south-bound cars. The plaintiff testified that, in his judgment, there was scarcely more than a foot of space between two cars passing each other in opposite directions on these tracks. According to the plaintiff's testimony, he alighted from the car at Eighty-First street, and, standing there with his face to the north, looked up the avenue. He said: ‘I could see Eighty-Second street and more this side of it. I should estimate I could see pretty nearly half the block-between a quarter and a half of the block this side of Eighty-Second street. * * * I did not see anything through the car. My view was obstructed.’ In other words, the plaintiff frankly admits that he could see no portion of the south half of the block between Eighty-Second and Eighty-First streets. The plaintiff's testimony then proceeds: ‘After the two seconds I started at once to cross the street to go to the other side of Eighth avenue. I was about a foot or a foot and a half behind this north-bound car, from which I had just alighted, when I started across very close to the back platform or dashboard. I walked across that street at an ordinary, medium gait. After I started I listened. As to what I did in the way of looking as I passed behind that car to cross the street: * * * I watched for vehicles coming from a southerly direction, and used my ears to hear what was coming from the northerly direction. Q. Did you look to see what...