
    Clara Ottendorff, Resp’t, v. James Willis, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 27, 1894.)
    
    Negligence—Question eor jury.
    The facts, in this case, were held to render the question whether the driver was negligent one for the jury.
    Appeal from a judgment entered on a verdict in favor of the plaintiff, and from an order denying a motion for a new trial.
    
      Henry L. Schenerman, for app’lt; Norman A. Lawlor, for resp’t.
   Brown, P. J.

—The plaintiff’s intestate, while crossing South street, in the city of Hew York, was run over by a large truck owned by the defendant, and received injuries from which he died. The accident happened about midday upon the crossing leading from Roosevelt street ferry to the southwest corner of South and Roosevelt streets. The deceased was coming from the ferry, and the truck was being driven to the dock of the Clyde line of steamships. The only witnesses who saw the accident, and attempted to describe it, were the driver of the truck and a man named Leo. The, latter was called by the plaintiff, and when she rested her case it did not appear which party was to blame. At the suggestion of the court, Leo was thereupon recalled, and testified as follows: “ This truck was standing still on Roosevelt street. This old gentleman was walking ahead when it was standing still. He was about fifteen feet from the truck when it started, -while he was walking ahead. When it started, Ottendorff was walking right ahead of the truck. He was always in front of the truck. I should judge, about eight feet, at that time. He was in front of the truck, and the driver whipped up his horses. He was eight feet away from the truck.—six feet from the truck. There was three crosswalks there,—two straight ones, and a slanting one from the ferry,—and this old gentleman was walking on the slanting cross-walk, towards Roosevelt street. Then the truck was standing on the side of Roosevelt, when he started ahead and struck the old gent. If the old man had stopped when the truck started, ahead, he would not have been hit. He was not in line with the truck. He kept right ahead,— going ahead of the truck. The driver of the truck brought his truck between Ottendorff and the sidewalk. There was more than fifty feet beyond where he could have gone clear. This truck was driving towards the down-town side on Roosevelt street,— going towards the river side.”

The driver contradicted this evidence, and gave testimony which, if believed, entirely exonerated him from fault, and placed the blame upon the deceased. I think the case was for the jury. If the deceased started to cross the street while the truck was standing still, his action in doing so was not careless, and the driver of the truck was bound to avoid him. The driver testified that he saw the deceased, and observed that he was an old man, and appeared timid; and his proper course was to have delayed starting his team until the deceased had passed in front of him. The evidence, I think, permitted the conclusion that the driver was negligent, and that the deceased exercised due care.

It was within the discretion of the trial court to permit the witness Leo to be recalled, and the exception to the ruling presents no question upon this appeal. Whether Leo’s testimony was worthy of belief was a question for the jury, and not for the court.

The judgment and order should be affirmed, with costs.

Cullen, J., concurs.

Dykman, J.

(dissenting).—This is an action under the statute to recover damages resulting from the death of John Philip Ottendorff. The plaintiff, who is the administratrix of the deceased, recovered a verdict for $1,500, and the defendant has appealed from the judgment entered thereon, and from the order denying a motion for a new trial upon the. minutes of the court. The accident occurred on the 18th day of January, 1890, upon the cross-walk leading from the Roosevelt street ferry diagonally across South street. The deceased was coming from the ferry. At that time a heavily laden truck, drawn by two horses, belonging to the defendant, and driven by a person in his employ, was waiting to go to the Clyde dock, and to reach there it was necessary to cross the diagonal sidewalk. But one person who witnessed the accident was called by the plaintiff, and his testimony was quite unsatisfactory. In one portion of his evidence he said he saw the wagon and the man approach each other, and saw the accident, but did not know how it was. When the plaintiff rested the defendant made a motion to dismiss the complaint, and the trial judge intimated that the case was very meager with respect to the party who was in fault Thereupon, a witness was recalled, and said the truck was standing, and started after the deceased was in front of it. Then the motion for a nonsuit was denied, and the defendant ealléd the driver of the truck as a witness ; and he said he shouted to the deceased, who stopped, and then he (the driver) got under way, and thereupon the deceased attempted to run around ahead of the team ; and that he got nearly past the team when the cross bar struck him. That testimony harmonized with^ the evidence of the plaintiff’s witness, and with all the other proof introduced by the defendant. In view of the rule of law that negligence on the part of the defendant and freedom therefrom on the part of the injured person are affirmative facts, to be established by the plaintiff by a preponderance of proof, we think the plaintiff failed to sustain the burden, thus cast upon her. All the witnesses were disinterested, except, as it may be said, the driver was interested to show himself free from fault Yet he was fully corroborated by the officer. In one material point he was corroborated substantially by the chief witness of the plaintiff, who said the deceased kept walking straight ahead, and if he had stopped when the truck started ahead he would not have been hurt The driver said, on that point, that he just got started to go ahead as the deceased stopped, and then he put the whip on the horses, and the deceased attempted to run around the team. In a case quite similar to this it was held by the court of appeals that: “ It is negligence per se for a foot traveler to attempt to cross a public thoroughfare ahead of vehicles of any kind, under such circumstances, upon nice, calculations of the chances of injury. If such attempt be made, and the calculations fail, to the plaintiff’s harm, he can have no redress for injuries received in his mistaken effort.” Belton v. Baxter, 54 N. Y. 245.

To the same effect is the case of Wendell v. N. Y. C. & H. R. Railroad Co., 91 N. Y. 420.

The police officer saw more of the occurrence than the principal witness for the plaintiff, and as he corroborates the testimony of the driver the great preponderance of the evidence is in favor of the defendant It shows the driver free from fault, and convicts the deceased of contributory, nngligence. The condition and situation in which he was placed demanded from him a vigilant use of his eyes, and a careful exertion of prudence, and it is plainly evident that the exercise of ordinary care and caution would have saved him from injury. Instead of stopping and remaining in a place of safety as he could easily have done, he moved forward into a situation of great danger, which was plainly apparent. The dav was bright, and there was nothing to obstruct the view or obscure the danger. The proof therefore fails to establish negligence on the part of the driver, or freedom from negligence on the part of the deceased. The judgment and order denying the motion for a new trial should be reversed, and a new trial granted, with costs to abide the event.  