Appeal from Trial Term, New York County.
Action by Pietro Pietraroia, as administrator, etc., against the New Jersey & Hudson River Railway & Ferry Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed, and complaint dismissed.
In an action against a street railroad for death of plaintiff's intestate through being struck by a car while attempting to cross defendant's track, evidence held to show contributory negligence on the part of deceased.
[116 N.Y.S. 250]
Clarence E. Thornall, for appellant.
Herbert S. Smyth, for respondent.
Argued before PATTERSON, P. J., and INGRAHAM, CLARKE, HOUGHTON, and SCOTT, JJ.
The action is to recover damages for the negligent killing of plaintiff's intestate, while she was attempting to cross one of defendant's tracks. The defendant is a New Jersey corporation, operates a ferry across the Hudson river from New York City to Ft. Lee, and a double-track street railway running from that place to various points in northern New Jersey. In the evening of October 19, 1906, the deceased, in company with her husband and another man, were intending to board a north-bound car on Broad avenue, in what is known as " Palisades Park." As they came to the far side of the avenue, a car was observed going in the desired direction, and the husband and friend went ahead of the deceased to detain the car for her. Whether from unwillingness to delay or lack of understanding on the part of the conductor, he refused to hold the car and started it with the two men aboard. From the testimony on the part of plaintiff it is apparent that the deceased proceeded diagonally northward in the vicinity of the south-bound track, in the hope of overtaking the car which her husband had boarded. A south-bound car coming at a rapid rate struck and killed her just as she was stepping over the outer rail of the south-bound track. It is also clear from the plaintiff's own proof that the point of the accident was about 75 feet north of the intersecting street where the husband had gotten aboard. Although there is some testimony that, when the witnesses first observed the deceased, she was 4 or 5 feet west of the south-bound track and in the vicinity of the northerly crosswalk of Central Boulevard, it is manifest that the accident did not happen at that point, as the plaintiff now insists, but at a point considerably further north. The south-bound car carried a lighted reflector headlight, which was very brilliant.
If it be conceded that the defendant was negligent in the speed at which the south-bound car was run, and that the motorman was careless in observing the movements of the decedent, still we are of the [116 N.Y.S. 251] opinion that the judgment cannot stand because of the clear contributory negligence on the part of the deceased. She was walking toward the coming brilliantly lighted car. Her husband testifies that he heard a whistle; but, whether the whistle sounded or not, she was bound to look, and to observe that a car was approaching upon the track which she was about to cross. The presumption is that she did look, for it was something she could not help but see. Plaintiff's counsel urges that the light was so bright that it blinded her, and that it was impossible because of its brightness for her to estimate its distance from her. These suggestions present no excuse. Had she only been injured, and not killed, and had she testified that she looked, as the law compelled her to do, and did not see the light and the car, her testimony would have been deemed incredible as matter of law, and she must necessarily have been held guilty of contributory negligence in failing to exercise ordinary caution. Dolfini v. Erie Railroad Co., 178 N.Y. 1, 70 N.E. 68.
The plaintiff, a resident of the state of New York, was appointed administrator of the deceased on the ground that she, although a resident of the state of New Jersey, left property within the county of New York, consisting of a deposit in a savings bank to the credit of herself and her husband, " or either." On her death the husband drew out about one half the amount, and on the trial testified that the other half belonged to his deceased wife. We are not prepared to say, upon his testimony and the form of the deposit, that none of the moneys belonged to the deceased, and that, therefore, the Surrogate's Court had no jurisdiction to appoint the plaintiff administrator of her estate.
The accident occurred in the state of New Jersey, and the defendant is a corporation organized under the laws of that state. The decedent and her husband and children were residents there. All the witnesses to the accident on both sides had to be imported to this state. In view of the pressure of business upon the courts of New York City, although the plaintiff may have had a technical right to bring the action here, it would seem that the trial should have been had in the other state.
In any event, the verdict was against the weight of evidence as to lack of contributing negligence on the part of the deceased, and the judgment and order must be reversed, and a new trial granted, with costs to the appellant to abide the event.
PATTERSON, P. J., concurs.INGRAHAM, J.
I concur with Mr. Justice HOUGHTON in the view that the deceased was guilty of contributory negligence; but I think this is a case in which the court should decline to take jurisdiction of the cause of action sued on for the reason stated in Ferguson v. Neilson, 58 Hun, 604, 11 N.Y.Supp. 524,Wertheim v. Clergue, 53 A.D. 124,65 N.Y.Supp. 750, and Collard v. Beach, 81 A.D. 582, 81 N.Y.Supp. 619.In each of these cases the court had jurisdiction of the cause of action and of the parties, but declined to exercise it on the ground that the action was to recover for a tort committed in a foreign state, where both parties to the action were residents of [116 N.Y.S. 252] that state. In this case the defendant was a foreign corporation having no business in this state, and over which the courts of this state have no jurisdiction. The deceased was a resident of that state, and her husband and next of kin, for whose benefit the action was brought, are also residents of that state. The plaintiff, who is a resident of this state, has obtained letters of administration upon the ground that the deceased had property in this state-a proposition which is doubtful, but which I assume we cannot consider on this appeal.
In this state by sections 1902, 1903, of the Code of Civil Procedure an executor or administrator may maintain an action to recover damages for a wrongful act by which the decedent's death was caused against a natural person who or a corporation which would have been liable to an action in favor of the decedent by reason thereof if death had not ensued; but the damages recovered in such an action are exclusively for the benefit of the decedent's husband or wife and next of kin, and when they are collected they must be distributed by the plaintiff as if they were unbequeathed assets left in his hands after payment of all debts and expenses of administration, and the complaint alleges that there is a like statute in New Jersey. It is however the statute of the state of New Jersey that gives the cause of action, and the action is thus brought to enforce the law of New Jersey, for the exclusive benefit of citizens of New Jersey, against a New Jersey corporation, for a tort committed in the state of New Jersey. If death had not ensued as the result of this accident, the courts of this state would have had no jurisdiction to determine whether or not the defendant was liable for the accident; and if the cause of action was given to the persons for whose benefit it could be brought the court would have had no jurisdiction. The New Jersey statute gives a cause of action to a New Jersey administrator of the decedent; but this plaintiff is not a New Jersey administrator, he having been appointed by the surrogate of this county only. The laws of this state also give such a cause of action; ...