
    Samuel Larner, Respondent, v. New York Transportation Company, Appellant.
    Second Department,
    February 16, 1912.
    Motor vehicles—negligence — collision with automobile — contributory negligence.
    In an action to recover for personal injuries alleged to have been caused by a collision with an automobile the plaintiff stated that he was upon a walk in the middle of the street; that he saw a street ear coming thirty-five or forty feet away; that he stepped from the platform to cross the car track and was struck by one of defendant’s taxicabs. There was no evidence that the taxicab was being operated negligently; that there was any reason for the defendant’s driver to anticipate that any one was going to step down from the platform into his pathway, or that the plaintiff had exercised any intelligent degree of care.
    
      Held, that under such circumstances the ease should not have been submitted to the jury.
    Appeal by the defendant, the New York Transportation Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered upon the verdict of a jury rendered on the 9th day of June, 1911.
    
      Arthur K. Wing [George S. Wing with him on the brief], for the appellant.
    
      Sol. L. Youngentob, for the respondent.
   Woodward, J.:

This case never ought to have been submitted to a jury. It is an action to recover for personal injuries, the plaintiff having been injured by a collision with an automobile at or near the New York approach to the Williamsburgh bridge. His own version is that he was upon a walk in the middle of Delancey street, near Norfolk street; that he was looking for a car or wagon along the street railroad tracks; that he saw a car coming thirty-five or forty feet away; that there were no obstructions, and that he stepped- down from the platform to cross the railroad track and was immediately struck by one of defendant’s taxicabs. There is no evidence that the taxicab was being operated negligently; that there was any reason for the defendant’s driver to anticipate that any one was going to step down from this platform into his pathway, or that the plaintiff had exercised any intelligent degree of care. He says that he was looking for a trolley car or wagon, that he saw a car approaching thirty-five or forty feet away, but no wagon or automobile, although it is certain, if the automobile struck him as soon as he stepped down from the platform, it must have been between him and the trolley car, and in plain view all of the time. To meet the requirements of the law, one must look with the purpose of finding out, and it is inconceivable that if the plaintiff had looked with this purpose, he should not have seen this taxicab immediately in front of him. All that can be said from the evidence is that the plaintiff was struck by a taxicab and injured. No negligence of the defendant is shown; no freedom from contributory negligence is even fairly suggested by the evidence. Moreover, the learned trial court permitted objectionable testimony over the objection and exception of the defendant, and the case generally was lacking in the elements to establish a legitimate cause of action.

The judgment appealed from should be reversed and a new trial ordered, costs to abide the event.

Jenks, P. J., Carr and Rich, JJ., concurred; Thomas, J., concurred in result.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  