Volosko v. Interurban St. Ry. Co.

• Decision Date: 10 December 1907
• Citation: 190 N.Y. 206,82 N.E. 1090
• Parties: VOLOSKO v. INTERURBAN ST. RY. CO.
• Court: New York Court of Appeals Court of Appeals

190 N.Y. 206

82 N.E. 1090

VOLOSKO

v.INTERURBAN ST. RY. CO.

Court of Appeals of New York.

Dec. 10, 1907.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Theodore Volosko against the Interurban Street Railway Company. From a judgment of the Appellate Division (113 App. Div. 747,99 N. Y. Supp. 484), reversing a judgment of nonsuit, defendant appeals. Reversed, and judgment of nonsuit affirmed.

This action was brought to recover damages alleged to have been sustained by the plaintiff through the negligence of the defendant. At the close of the evidence for the plaintiff he was nonsuited by the trial justice, but on appeal to the Appellate Division the judgment was reversed, and a new trial granted; two of the justices dissenting. The defendant thereupon appealed to this court and gave the usual stipulation for judgment absolute in case the order of reversal should be affirmed.

Chase, J., dissenting.Bayard H. Ames and Henry A. Robinson, for appellant.

Rudolph Marks, for respondent.

VANN, J.

The plaintiff was injured in an accident which occurred on the afternoon of May 12, 1903, near the middle of the block which lies on East Tenth street between Avenues A and B, in the borough of Manhattan. Said block is 600 feet long, and the double tracks of the defendant's electric railroad extend through it with a branch curving around the corner into each of said avenues. The plaintiff was engaged in unloading blocks of marble from a wagon standing north of and parallel to the north rail of the north track. The distance between that rail and the hub of the rear wheel nearest thereto was five or six inches. The plaintiff insisted that the horse hitched to the wagon was facing east, but all the other witnesses swore it was facing west. Some of the blocks were so large that he could not unload them from the rear of the wagon, and, as he was instructed by his employer not to stand on them, he stepped upon the hub of the rear wheel nearest the track, and stood there. The work required him to lean over facing toward the north. At first he was occupied in removing hay wrapped around the marble, but finally he bent over to lift a large block, but before he got hold of it he was struck on the right side by a closed car, projecting over the tracks in the usual way, and injured more or less severely. The car, after turning into Tenth street from Avenue B, ran rapidly, silently, and without warning. The tracks were unobstructed and in plain sight for 300 feet in either direction. The plaintiff could not see the car when it was on the avenue, but it came into full view as it turned around the corner, and it continued in full view until it struck him. He knew the tracks were there, but he looked in neither direction before he got on the hub, nor while he stood there at work for five or ten minutes immediately preceding the accident. The wagon had been there for a quarter of an hour, but no car had passed during that period. The motorman gave no signal until just before the collision, when he rang the bell; but the car did not stop until it was ‘two houses away from the wagon.’

As the plaintiff was nonsuited, he is entitled to the most favorable inferences that the jury could reasonably draw from the evidence, and we have stated the facts on that theory. While the jury would have been authorized to find the defendant guilty of negligence, was the evidence strong enough to permit them to find the plaintiff free from contributory negligence? We think not, because he knew that he was in a place of danger, and it was his duty to exercise some care for his own safety; yet he took no care whatever. While he had a right to stop his wagon where he did, tomporarily, for the purpose of unloading, his rights were subordinate to those of the railroad company, which had the right of way. He had no right to obstruct travel upon the railroad, and it was his duty to get out of the way when a car came along so as to let it pass. Still the motorman had no right to run him down, if he did not get out of the way, for it was his duty to approach carefully, with his car under control, so that he could stop promptly if necessary to prevent an accident. Each party had the right to assume that the other would do his duty, but neither had the right to so act that, if the other did not do his duty, a collision would follow. The plaintiff's work required him to stoop with his back...