Zucker v. Whitridge

• Decision Date: 19 March 1912
• Citation: 205 N.Y. 50,98 N.E. 209
• Parties: ZUCKER v. WHITRIDGE.
• Court: New York Court of Appeals Court of Appeals

205 N.Y. 50

98 N.E. 209

ZUCKER

v.WHITRIDGE.

Court of Appeals of New York.

March 19, 1912.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Louise Zucker, as administratrix of the estate of Simon Zucker, deceased, against Frederick W. Whitridge, as receiver. From a judgment of the Appellate Division (143 App. Div. 191,128 N. Y. Supp. 233), sustaining a judgment for plaintiff, defendant appeals. Reversed and remanded.

See, also, 144 App. Div. 899,129 N. Y. Supp. 1151.

Frederick J. Moses, of New York City, for appellant.

Julius Henry Cohen, of New York City, for respondent.

VANN, J.

Third avenue in the city of New York, running nearly north and south, crosses Eighteenth street almost at right angles. The defendant has two railroad tracks laid on the surface of the avenue at the point where it crosses the street; the easterly track being used for cars going north, and the westerly for those going south. On the 18th of December, 1908, at about half past 8 in the evening, the plaintiff's intestate, while walking easterly on the northerly crosswalk of Eighteenth street, as he was about to step over the westerly rail of the north-bound track, was struck by a north-bound trolley car and fatally injured. In this action, brought by his administratrix under the statute, the jury found a general verdict in her favor, and the Appellate Division affirmed the judgment entered thereon; two of the justices dissenting.

[1][2] As the negligence of the defendant is not now denied, the primary question is whether the decedent was negligent as matter of law. This question depends on the testimony given in behalf of the plaintiff; for no witness was called by the defendant.

There is an elevated railroad structure over the avenue at the point in question, with the usual stations, platforms, and stairways; and when the accident happened a train was passing overhead. A south-bound car had just crossed Eighteenth street, which is a little more than 30 feet wide between curbs, and it was some distance south of the street when the decedent was struck. The night was dark and misty; but there was an electric light on the northeast and another on the southwest corner and a gas light on the northwest corner. Twelve iron columns, each 16 inches square, supporting the elevated structure, stood as follows: Three in the westerly sidewalk of the avenue, one on either side of Eighteenth street, 4 feet 3 inches west of the west curb of the avenue, and the third on the west curb of the avenue, the first and second being a little more than 30 feet apart, and the second and third between 50 and 60 feet; three a few feet west of the south-bound track, and three more a few feet east of the north-bound track, and about the same distance apart, north and south, as the three first above described; three more in the easterly sidewalk, situated about the same as the three in the westerly sidewalk. There were also the four stairways and the poles supporting the three lights.

The decedent was in the prime of life and in the possession of his faculties. As he walked easterly on the north crosswalk of Eighteenth street, the crossing was directly before him; but his view toward the south was somewhat obscured at some points by the stairways, columns, etc., until he reached the westerly curb of the avenue. He then had about 18 feet to go before reaching the last column which obstructed his view; and, while going this distance, his vision was much less obstructed than before. From that column to the west rail of the south-bound track was 4 feet 3 inches; the rails of that track were 4 feet 8 1/2 inches apart, and the distance between the nearest rails of the two tracks was 5 feet 4 inches, and while going this distance of a little over 14 feet his view of the defendant's tracks was not obstructed at all, either to the north or south. He was walking at the rate of about 3 miles an hour, while the north-bound car was going at the rate of from 15 to 18 miles an plunge into danger. He did not go onto any kind observed. It did not stop at the south crosswalk. As he lifted his foot to step over the west rail of the north-bound track, he was struck on his right side by the left-hand front corner of a north-bound car, whirled around and thrown down, but not run over. The car stopped within from 5 to 8 feet of his body. According to the only witness, who assumed to estimate the distance in feet, the car was from 4 to 8 feet from him as he was about to step on the track. During the last 14 feet of his journey, he had a clear view to the south; and if he had looked in that direction he could have seen the north-bound car, which was fully lighted and approaching rapidly. While walking that distance, he was in a situation which required active vigilance. He lived near by, frequently passed over this crosswalk, and knew the locality well. He had nearly 20 feet to go, in order to safely clear both tracks, and over 14 feet to go before reaching the west rail of the north-bound track. He did not halt, or vary his rate of speed, or turn his head, or look in any direction, except straight ahead, so far as was observed by any of the four persons who saw the accident. Two witnesses were about 15 feet behind him, walking in the same direction, one of whom testified that he held his head ‘perfectly horizontal,’ in a ‘natural position,’ while the other said that he was walking ‘the same as anybody else, * * * about the same’ as the witness himself; and he added: ‘I walk with my head up and look at everything when I am going to cross the cars.’ While this warranted the inference that the decedent walked ‘about’ as the witness did, it did not permit the inference that he looked at everything, as the witness said he did. Another witness testified that the head of the decedent was ‘level, I mean straight, just as a man would carry himself ordinarily.’ There was no different description of his carriage or conduct. moved to strike out the answer as incompetent Division, apparently with some hesitation, announced as their opinion that the jury could have found from the evidence that if the decedent had looked he could not have seen the approaching car in time to save himself. I see no evidence in the record to justify this conclusion. While the view of the decedent was somewhat obstructed at first, for over 4 feet before he attempted to cross the first track, and for over 14 feet before he attempted to cross the second track, his view, both to the north and south, was wholly without obstruction of any kind. If he looked at first, and found his view was not clear, he was bound to keep on looking, and not try to cross the tracks until he could see his way was free from danger. The trial court charged that: ‘If the jury find that a south-bound car temporarily interfered with Zucker's view of the north-bound track, that fact made it incumbent upon him to be vigilant and to look again after the car had ceased to interfere with his view.’ He did not look, or try to look at any time or place, so far as appears. He passed over the space where the view was clear apparently so absorbed in thought that he looked in no direction, except straight ahead . No witness saw him look, or try to look, or turn his head, or make any movement as if he was looking, until, as one witness stated, as he was in the act of stepping on the last track, when it appeared as if he noticed the car and tried to jump back; but the car caught him before he could escape.

The trial court also charged that the decedent ‘did not have the right to rely on the cars could have no bearing in this case . Moreover, if the decedent saw the car when it was at the south crosswalk, or near it, the theory upon which the case was submitted to the jury utterly failed, and he was conclusively shown to be guilty of affirmative negligence.

The burden of furnishing some evidence tending to show that the decedent used some care rested upon the plaintiff; but she did not meet it. Although two witnesses had him under observation all the time, and two more the most of the time, while he was traveling the last 30 feet toward a place of known danger, not one saw him look in any direction, except straight ahead. During the last 14 feet, he crossed the westerly tracks, and was about to cross the easterly; yet it did not appear, either from direct evidence or from circumstances, that he looked either to the right or to the left as he walked this distance, and it conclusively appears that if he arising from theoccurrence.' Warner v. N. car; for it was no longer obstructed, either by columns or the south-bound car. If there had been no eyewitness of the accident, less evidence of care would have been required from necessity; but in such a case the jury could not find that care was exercised without some evidence, even if weak, to act upon. Here there was none. The surrounding circumstances did not show that the accident might have happened without negligence. While not obliged to look in any particular direction at any particular point, it was the duty of the decedent to look in both directions before he tried to cross the tracks; for he was familiar with the situation and knew the danger. The night was misty and dark, but the locality was well lighted; the north-bound car was fully lighted, and all the witnesses had no difficulty in seeing the car, while some of them saw it when it was more than half a block away. The slight defect in his eyesight did not excuse him from looking; and it had but a slender bearing on what he could have seen if he had looked. As matter of law, he was not obliged to stop and look; but it was his duty at least to look as he walked on, and not blindly plunge into danger. He did not go into the second track and get caught there before he could get off; for he was struck as he was going on, and was thrown down, but not run over. He stepped directly in front of the car when in plain sight,...