Hannah Thornton, Respondent, v. Interurban Street Railway Company, Appellant

Hannah Thornton, Respondent, v. Interurban Street Railway Company, Appellant. Second Department, November 27, 1908. Appeal —when review, confined to exceptions — railroad — injury to " pedestrians crossing tracks — contributory negligence. Where a verdict for a plaintiff is set .aside on the condition, that the defendant pay the costs, and the latter does not avail itself of that order, or appeal therefrom, but "appeals solely from the judgment, the Appellate Division cannot pass upon the weight of evidence but is confined'to a review of the exceptions. The plaintiff having alighted from a street car was struck by another car while attempting to cross the tracks. She gave evidence that she looked in both directions and did not see a car coming, and it appeared that her'view was obstructed. On all the evidence, held, that she was not guilty of contributory negligence as a matter of law. " Appeal by the defendant, the Interurban Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of February, 1908, upon the verdict of a jury for $1,000, rendered after a trial at the Kings County Trial Term. Bayard H. Ames [ Vine H. Smith and Henry A. Robinson with him on the brief], for the appellant. Martin A. Schenck [Clarence Lexow and Charles K. Lexow with him on the brief], for the respondent. [MAJORITY — Jenks, J.:] Jenks, J.: The plaintiff complains that the defendant’s street surface car was negligently driven against her when she was attempting to cross over the defendant’s rails in a city street. Her verdict was set aside, on motion of the defendant as contrary to law, on condition that the defendant pay costs within 10 days after the entry of the order to that effect. The defendant did not avail itself of the order, nor did it appeal therefrom. But it takes this appeal from the judgment. We cannot pass upon the weight of evidence; our review is confined to the exceptions. (Collier v. Collins, 172 N. Y. 99; Ten Eyck v. Witbeck, 55 App. Div. 165.) There is no allegation of error in the rulings of the learned trial court upon the evidence or in its charge, and we find none. The evidence was sufficient to justify the submission of the negligence of the defendant to the jury, as the defendant admits. We are thus limited to the question whether the plaintiff was guilty of contributory negligence as matter of law, or failed to give any evidence that she was free from contributory negligence, raised by the exception to the motion made at the close of the entire case for a dismissal or a direction in in favor of the defendant. The accident occurred in the daytime. The plaintiff, who had been a passenger in a car, left the car and went to the curb of the street, intending to cross over the street. She testifies that then, and before attempting to cross, she looked in “both directions for a car,” and did not see any car coming; that she then started to cross, and when upon the tracks of the defendant she was struck by an oncoming car and injured. One of plaintiff’s witnésses testifies that after the plaintiff left the car, “ she was going about like that when I seen her looking around.” The evidence does not indicate that it was incredible that she, looking from her viewpoint, did not see the car which struck her, so as to make her guilty of contributory negligence as matter of law within the doctrine enunciated in Dolfini v. Erie R. R. Co. (178 N. Y. 1) and like cases. Indeed, the learned trial court, as indicated by its opinion, inferred that the plaintiff’s view, at the time she testified that she looked for the car, was obstructed. Moreover, the evidence does not justify the conclusion that even if .the plaintiff looked, as she testified, and yet did nothing more, she was guilty of contributory negligence as matter of law. in attempting to cross the street under the surrounding circumstances. (See Montenes v. Metropolitan Street R. Co., 77 App. Div. 493, 495.) I advise affirmance, with costs. Present — Woodward, Jenks, Gaynor and Miller, JJ. Judgment unanimously affirmed, with costs.