SHEEHY v. BURGER ET AL., 62 N.Y. 558 (1875)

MARGARET SHEEHY, Appellant, v. HENRY S. BURGER et al., Respondents.

Court of Appeals of the State of New York.Argued June 24, 1875
Decided September 21, 1875

Nathaniel C. Moak for the appellant.

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Winchester Britton for the respondent.

RAPALLO, J.

The motion for a nonsuit was made upon two grounds only. First. That there was not sufficient evidence to show that the defendants were the parties responsible for the act of the driver of the truck. And, second. That the plaintiff, by her own negligence, contributed to the accident. No point was made at the trial as to the sufficiency of the evidence of negligence on the part of the driver, and that question is not now before us.

The first ground of nonsuit appears to have been abandoned on the argument at General Term, and is not now insisted upon. The only question in the case is, whether the testimony so clearly shows contributory negligence on the part of the plaintiff that the court was justified in granting a nonsuit on that ground.

The plaintiff asked the court to submit that question to the jury, and we are of opinion it should have been so submitted. According to the testimony of the plaintiff, the truck turned around the corner just as she stepped off the sidewalk, and the plank dragging behind it swept around and caught her. She says: “I just took a step and they turned around and swept me.” The jury might have found that although the horses had begun to turn, the truck had not turned, and that she had begun to step off before the plank

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had begun to swing, and that she had not time to recover herself before being caught. Her failure to observe the rather unusual and dangerous appendage dragging behind the cart, and to calculate the sweep it would make when the truck should turn the corner, can hardly be held as matter of law to be conclusive evidence of negligence on her part. That the turning of the truck might have the effect of causing the plank to sweep the sidewalk was known by the driver, but might have been, and probably was, unknown by the plaintiff. No warning was given her, and it was for the jury to say, under all the circumstances, whether she had sufficient knowledge or means of knowledge, of the probable effect of the turning of the truck to render it negligent on her part to fail to avoid the danger.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

All concur.

Judgment reversed.