Third Ave. Ry. Co. v. Mills

• Decision Date: 13 February 1918
• Docket Number: 138.
• Citation: 249 F. 661
• Parties: THIRD AVE. RY. CO. v. MILLS.
• Court: U.S. Court of Appeals — Second Circuit

249 F. 661

THIRD AVE. RY. CO. v. MILLS.

No. 138.

United States Court of Appeals, Second Circuit.

February 13, 1918

The action is to recover for personal injuries received by plaintiff below while a passenger on one of defendant's street cars, which collided with a motor truck on Third avenue, between Twenty-Third and Twenty-Second streets. The avenue at this point contains the north and south bound tracks of the street railway, which lie between the two rows of pillars supporting the elevated railway structure. The space between pillars in same line is 42 feet, and each line of pillars is 3 1/2 feet from the nearest street car rail.

Plaintiff's car, south bound (i.e., on westerly track) had stopped at Twenty-Third street, and had regained a speed characterized as moderate, and estimated at 5 or 6 miles an hour. At same time the motor truck, 20 feet long, was traveling south, on west side of avenue between elevated pillars and curb, at a slightly faster rate, estimated at 7 miles per hour. In order to avoid a coal-laden vehicle, the truck turned to the east between the railway pillars, still continuing its speed, and when its front wheels were on the railway track, the street car ran into it. This occurred in broad daylight, and plaintiff, seeing contract probable, if not certain, rose from his seat, and on collision was thrown against a railing, receiving a blow said to have caused a hernia.

Whether the truck gave any signal of intent to go on railway track was not proved. One witness said a man on the left of truck seat, not the chauffeur, 'put out his hand'; but the only evidence from the truck was that it had a left-hand drive, and the witness (and only person on the truck other than the chauffeur) said he did nothing, sat on the right, and knew not what the chauffeur (who did not testify) did, if anything. Plaintiff noticed the truck on the roadway between curb and pillars, and about 30 feet ahead of car, saw it 'turn right in between the pillars,' and reach the street car track, when the car was 20 or 25 feet away. Collision happened almost instantly. The owner of truck was not sued in this action.

The foregoing summary is taken wholly from evidence adduced for plaintiff, who had a verdict. We notice the following assignments of error: (1) Plaintiff should have been nonsuited; (2) the court erred in charging that, if defendant's motorman by 'the exercise of the highest degree of care' could have stopped the car in time to avoid collision, the jury could find defendant 'guilty of negligence'; and (3) counsel for plaintiff, by improper conduct, prevented a fair trial.

Alfred T. Davison, of Brooklyn, N.Y., for plaintiff in error.

Louis Boehm, of New York City, for defendant in error.

Before WARD, ROGERS, and HOUGH, Circuit Judges.

HOUGH Circuit Judge (after stating the facts as above).

The testimony for plaintiff proved a plain case of negligent driving by the motor truck; the only negligence suggested against the street car was that it did not stop as soon as it could. As to how soon it could stop there was no evidence at all, until defendant's witnesses were produced, when questions by plaintiff's counsel elicited testimony that even the emergency brake could not stop a car going at the rate stated by plaintiff in less than 35 to 40 feet. The questions so asked were not germane to anything the witness had said on direct examination. Deutschmann v. Third Ave. R.R., 78 App.Div.at page 414, 79 N.Y.Supp. 1073.

It is true (nearly always) that a jury is not bound to believe any particular witness, but they must believe some witness, or reach conclusion by comparison of divers and different statements. Here there were no differing statements on the point under consideration. Any verdict must rest on evidence and plaintiff's evidence did not prove nor tend to show that the car could have stopped within 20 to 25 feet, or any other...