William Fitzgerald, Appellant, v. Lillian Russell, Respondent

William Fitzgerald, Appellant, v. Lillian Russell, Respondent. Third Department, March 5, 1913. Motor vehicles — negligence — injury to pedestrian crossing street — use of borrowed car — evidence raising questions for jury. Action to recover for personal injuries caused by an automobile which coming around a corner struck the plaintiff as he was attempting to cross the street. It appeared that the defendant did not own the car, which had been loaned to her, but that on the day of the accident she directed the chauffeur where to go and what to do. Held, that a nonsuit was error, as the negligence of the defendant’s chauffeur and the contributory negligence of the plaintiff should have been submitted to the jury. On an appeal from a judgment entered upon a nonsuit the plaintiff is entitled to the benefit of every fact which the jury could have found from the evidence and to all inferences warranted thereby. Kellogg, J., dissented. Appeal by the plaintiff, William Fitzgerald, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 11th day of August, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Schenectady Trial Term, and also from an order entered in said clerk’s office on the Itth day of January, 1912, denying the plaintiff’s motion for a new trial made upon the minutes. James J. Barry and James A. Leary, for the appellant. George Young Bauchle and Thomas J. Canty, for the respondent. [MAJORITY — Lyon, J.:] Lyon, J.: It has long been settled law that in reviewing a judgment entered upon a nonsuit the plaintiff is entitled to the benefit of every fact that the jury could have found from the evidence and to all inferences warranted thereby. (Costello v. Third Avenue R. R. Co., 161 N. Y. 317.) This action was brought to recover damages on account of personal injuries received by plaintiff by being struck by an automobile in Wall street, in the city of Schenectady, in the forenoon of August 6, 1910. From the testimony of the plaintiff and of the witnesses Sweeney and Dinardo, given upon the trial, the plaintiff had the right to claim as facts warranted by the evidence that while on the westerly sidewalk of Wall street, and about fifteen feet from the corner of State street, he sought to cross from that sidewalk diagonally to the easterly sidewalk; that as he started to cross the street he looked towards State street and saw nothing; that when he had reached the middle of Wall street he looked again and saw a car rounding the corner, and that the car was then going in a straight line along the center of Wall street; that thinking he had time to reach the opposite curb he continued on his course for two or three feet, and when within two or three feet of the easterly curb he was struck by the car; that when he first saw the car after it had turned into Wall street it was running five or six miles an hour, but that its speed increased until at the time it struck the plaintiff it was running eight or ten miles an hour; that instead of keeping a course along the center of the street the car turned towards the easterly curb, swinging in towards plaintiff and running him down; that the distance between the curb and the nearest wheel of the car while the car was in the middle of Wall street was three or four feet. The plaintiff and two physicians were witnesses as to the extent of plaintiff’s injuries. A sister of the defendant testified that, while the defendant did not own the car, it had been loaned to her to use for a few days, and that the defendant had that morning told the chauffeur where to go and what to do, and that at the time of the accident he was doing business that the defendant had directed him to do. In view of all this testimony we think the plaintiff had the right to have the questions as to the negligent operation of the car and of the plaintiff’s contributory negligence submitted to the jury. The judgment and order appealed from must, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred, except Kellogg, J., dissenting. Judgment and order reversed and new trial granted, with costs to appellant to abide event.