Dooley v. Union Railway Co.

Citations

• 106 A.D. 397
• 94 N.Y.S. 635
• 1905 N.Y. App. Div. LEXIS 2596

Syllabus

<p>Negligence — injury to a pedestrian on a city street from being struck by the step of a passing railway car—failure to establish the absence of contributory negligence.</p> <p>In an action brought to recover damages for personal injuries, it appeared that on the evening in question, while the plaintiff was walking in the roadway of a public street in the city of New York, upon which the defendant operated a double-track street railway, he was struck and injured by the step of one of the defendant’s cars which approached him from behind, while running at a rapid rate of speed. It appeared that it was a dark night; that the roadway between the sidewalk and the defendant’s tracks was thirty feet wide; that the plaintiff chose to walk in the roadway because the sidewalk was out of repair; that he was familiar with the condition of the street and with the manner in which the defendant’s cars were operated, and with the fact that they ran very rapidly at night.</p> <p>Held, that, aside from the question whether there was sufficient evidence to warrant a finding of negligence on the part of the defendant, the plaintiff could not recover, for the reason that the plaintiff did not show that he was free from contributory negligence.</p>