Schneller v. Ninth Avenue Railroad , 219 A.D. 571 ( 1927 )

Proskauer, J.

Plaintiffs’ intestate was killed by contact with a south-bound car operated by defendant on Amsterdam avenue in the neighborhood of One Hundred and Fourteenth street. There was an excavation on the east side of the avenue near the curb. A bridge over this excavation had been placed directly at the north crosswalk of One Hundred and Fourteenth street. Decedent and two companions came from a building on the east side of Amsterdam avenue between One Hundred and Fourteenth and One Hundred and Fifteenth streets and proceeded southwesterly across Amsterdam avenue. They did not use the crosswalk bridge, but went over the excavation to the north thereof. The accident happened at a point fixed by various witnesses at from thirty to forty feet north of the crosswalk. One of the intestate’s companions ran across the track in front of the south-bound car and barely escaped it. The intestate was struck by the extreme southeast portion of the car and his body was found after the accident to the east of the track.

To this state of facts the between the crossings rule must be applied. No necessity is shown for the conduct of the intestate and his companions in crossing between the blocks and the motorman was called upon to exercise only that degree of care which is generally imposed upon him in such a situation. He was not required to anticipate that the intestate would step upon the track in front of an oncoming car but twenty to twenty-five feet away and so close to him that only its near corner would strike him. The motorman was guilty of no negligence and there was affirmative proof of contributory negligence on the part of plaintiffs’ intestate. (Unger v. Belt Line R. Corp. 234 N. Y. 86; Neuman v. Union R. Co., 243 id. 249; Ploxin v. Brooklyn Heights R. R. Co., 171 App. Div. 925; affd., 220 N. Y. 609.)

The case is distinguishable from Hinz v. Eighth Ave. R. R. Co. (243 N. Y. 90) because there the defendant’s negligence and the intestate’s freedom from contributory negligence were predicated upon a sudden acceleration of speed by the motorman.

The judgment and order should be reversed on the law and the facts, with costs, and the complaint dismissed, with costs.

Dowling, P. J., Merrell, Martin and O’Malley, JJ., concur.

Judgment and order reversed, with costs, and the complaint dismissed, with costs.