Sarah Theresa Mead, Appellant, v. Otto Huber Brewery, Respondent

Sarah Theresa Mead, Appellant, v. Otto Huber Brewery, Respondent. Negligence-^injury to a pedestrian at a street intersection—by calling the defend- ' ant’s servant as a witness the plaintiff vouches for his general credibility, but may contradict a particular statement—failure of the plaintiff -to establish care on her part. - ‘ In an action brought to recover damages for personal injuries sustained by the plaintiff in consequence of being struck at a‘street intersection by a, horse and wagon driven by the defendant’s servant, the plaintiff, by calling such servant as a witness, thereby vouches for his general credibility. She may, however, contradict a, particular statement made by him. Where the plaintiff does not testify that .she exercised her faculties in any way, at the time of the accident or'that she looked for vehicles, of that she saw or , did not see the defendant’s horse and wagon or that she did. anything except to remain standing at ,tlie street intersection tin til she was struck andinj ured. , her Complaint is properly dismissed, such evidence being insufficient to Show - . the exercise of care on hér part. Appeal by the plaintiff, Sarah Theresa Mead,' from a judgment of the County- Court of Kings county in favor -of the -defendant,, entered in the office ef the clerk of, the county of Kings on the 2d day of March, 1904, upon the dismissal of the complaint by direction of the court after a trial at a Trial Term of said County Court. Ernest G. Stevens [Philip Lindsley with him on the brief], for the appellant. Grant C. Fox, for the respondent. [MAJORITY — Hirschberg, P. J.:] Hirschberg, P. J.: The dismissal of the plaintiff’s complaint was proper. She sued to recover damages for personal injuries alleged to have been sustained by reason of the negligence of defendant’s servant driving its horse and wagon at the intersection of Flat'oush avenue and Fulton street in the borough of Brooklyn. The accident occurred in the daytime, and the proof was wholly void of evidence tending to establish her freedom from contributory negligence, assuming that on the question of the defendant’s negligence there was sufficient proof to carry the case to the jury., The plaintiff called the defendant’s driver as a witness and proved by him that, as he was jogging along, she deliberately backed into the shafts notwithstanding that he called to her loudly and turned his horse away as quickly as he could in an effort to, avoid the collision. The only other evidence given in relation to the actual occurrence was her own, and she testified to nothing on that subject except the fact that she stood in the street waiting for a car without moving for from five to ten minutes, adding the statement that “ the next thing I recall is the hospital.” The inference is that while so standing she was struck by the defendant’s horse and wagon. Having called the defendant’s driver as her witness, the plaintiff must be deemed to have vouched for his general Credibility, so that that question was not presented for the jury’s consideration. She was, of course, at liberty to contradict his statement that she backed into the wagon by testifying that she did not'move, and to that extent it may be conceded that there was some evidence in support of the charge of negligence on the part of the defendant. It is all the evidence there is on that point. But there was absolutely nothing to show the exercise of care on the plaintiff’s part; no proof that she exercised her faculties in any way; that she looked for vehicles ; that she saw or did not see .the defendant’s horse and wagon, or that she did anything in fact except to remain standing at the intersection of the two crowded city streets until she was struck and injured. That such evidence is insufficient to establish care is too plain to require citation. It certainly cannot be asserted that it is adequate proof of ordinary care to testify that one has stood motionless in a busy thoroughfare until run into by a vehicle. i 'It follows that the judgment must be affirmed. Present — IIirschberg, P. J., Woodward Jenics, Rich and Miller, JJ. Judgment of the County Court of Kings county unanimously affirmed, with costs.