Barker v. Savage

It was the legal duty of the plaintiff, in crossing the avenue, to exercise reasonable care to protect herself from injury by a collision with vehicles that were traveling thereon. If the omission of such care by her contributed to the injury received, she could maintain no action therefor. In Hartfield v. Roper (21 Wend., 615), Cower, judge, says: “ That it is perfectly well settled that if a party injured by a collision on the highway, has drawn the mischief upon himself by his own neglect, he is not entitled to an action, even though he be lawfully in the highway pursuing his travels. (See also, Rathbun v. Payne, 19 Wend., 399). The only question usually arising in such cases is, as to what constitutes reasonable care. This question has often arisen and been determined in cases of collision with trains, where railroad tracks intersect a highway. In these cases, it has been held that reasonable care requires a vigilant use of the senses, of the eyes, and ears in looking and listening for trains, so as to be able to avoid any collision therewith, and that the omission of this care, if contributing to an injury, will preclude a recovery therefor. (Nicholson v. The Erie Railway Co., 41 N. Y., 542; Baxter v. Troy and Boston Co., id., 502; Harty v. Central Co. of N. J., 42 N. Y., 472.) These cases show that reasonable care is such as prudent persons exercise, when contemplating the danger that may be encountered at such crossings. That danger arises 'from the great speed at which trains are usually run, and from the almost inevitable destruction arising from collision therewith. The same principle applies to street crossings in cities and road crossings in the country, reasonable care being such as the danger to be apprehended from collision, renders necessary for protection in case others in the exercise of their right of way, observe due and proper care on their part. In the application of this.principle it is obvious that less care is required in crossing the streets and avenues of cities at the usual street crossings than at railroad crossings, for the reason that vehicles traveling thereon move at much less speed than railroad trains, and are, to a much greater extent, under the immediate control of those having charge of them. The constant active vigilance required for self preservation at railroad crossings is not equally requisite at street crossings for this purpose, and is not therefore, at the latter crossings, required by reasonable care. ¡Nevertheless these crossings are not free from danger to footmen, and at those most crowded there is serious danger to be apprehended. Reasonable care requires, in all cases, the exercise of vigilance proportioned to the danger encountered. To enter upon a street crossing in a city where the' moving vehicles are numerous, and a- collision with them likely to produce serious injury, without looking in both directions along the street to ascertain whether any are approaching, and if so their rate of speed, and how far from the crossing, would not only be the omission of reasonable care" for. his own safety, but an act" of rashness.. It is likewise the duty to look at street and road crossings for a like purpose, when there may be danger from approacbing vehicles, although the travel may be quite trifling, for the reason that vehicles- may be approaching so as to make it dangerous for footmen to proceed In' impressing this degree of care upon footmen for their own safety, the law does- not exonerate-those in charge

The judgment appealed from must he reversed, and a new trial ordered; costs to abide event.

Church, Ch. J., Allen, ¡Folgbr, and ¡Rapallo, JJ., concurred ; Beckham, J., concurred in result only on ground of error in charge; Andrews, J., took no part.

Judgment reversed, and new trial ordered; costs to abide the event.