Gruhn v. Brooklyn Heights Railroad , 154 N.Y.S. 1094 ( 1915 )

Benedict, J.

This action was tried by a justice sitting with a jury. At the close of the plaintiff’s case the court dismissed the complaint upon the merits with fifteen dollars costs, upon the authority of Woodward v. New York Railways Co., 164 App. Div. 658. The stenographer’s record differs from the judgment in that it states that the dismissal was without prejudice; but the judgment is controlling on this point. The dismissal should not have been “ on the.merits,” as the defendant had offered no evidence, nor had it rested upon the plaintiff’s case. This error might be cured by striking out the obnoxious words if the judgment of non-suit were correct. In my opinion it was not proper.

It would appear from the judgment that the court held that the plaintiff’s servant was guilty of contributory negligence as a matter of law, and for this he relies upon the Woodward Case, supra. In that case, however, which was decided by three out of five justices of the Appellate Division, first department, the facts were quite different from those shown herein.

In the present case the plaintiff’s servant was driving a milk wagon along Myrtle avenue on the right hand side of street in an easterly direction towards Bichmond Hill at about four o ’clock in the morning on September 18, 1914. As he approached Folsome avenue, the driver saw a car approaching from the opposite direction about two blocks away at Lafayette avenue. The distance between Folsome and Lafayette avenues is 452.91 feet. He wished to turn into Folsome avenue; and, as he was about to do so and was crossing the tracks, the wagon was hit by the trolley car, which struck one of the hind wheels and practically demolished the wagon, scattered' its contents," consisting of milk bottles, broke the harness and injured the horse. The plaintiff’s wagon had two lights upon it, and there were electric lights in the street. The plaintiff looked before starting to turn across and saw the trolley car about two blocks away. He judged that the car was standing still when he saw it, but the judge struck out the statement as not responsive to the question asked on his cross-examination whether the car was coming fast and plaintiff excepted.

The court apparently thought the driver should have looked more than once, but it is clear that he looked as he started to turn across the track, and seeing the car at a considerable distance away he turned across. There was here no failure to exercise due care and prudence unless we are prepared to say that a driver must always stop to permit an approaching car to pass, no matter how great its distance, when first seen, may be. This is not the law, nor would it be reasonable. It would seem that ordinary prudence would permit a driver to cross a street railway track if the approaching car was at the time he started to cross 400 feet distant. The driver had a right to assume also that the motorman would have his car under a proper degree of control at a street crossing and to rely, at least to some extent, upon that assumption. Ordinary prudence is all that is required; and, if that be shown, the plaintiff should not be non-suited but is entitled to have the question of his contributory negligence submitted to the jury to decide upon the evidence.

The judgment should be reversed, with costs in this court and a new trial granted.

Maddox and Crane, JJ., concur.

Judgment reversed, with costs, and new trial granted.