Gootar v. Levin

SPENCE, J.

Plaintiff brought this action against defendant to recover for personal injuries received when plaintiff was struck by defendant’s automobile truck. Judgment in the sum of $2,250 was entered in favor of plaintiff upon the verdict of the jury. From this judgment defendant appeals. '

The accident occurred in a private driveway on the premises of the defendant. Both plaintiff and defendant were dealers in junk and plaintiff had called at defendant’s premises to obtain a chain. In leaving the premises plaintiff stepped into the driveway from defendant’s office in the adjacent building. The width of the driveway was twelve feet three inches. Defendant’s employee was endeavoring to back the truck from the front of the premises through the driveway and into the yard. The truck was about eight feet wide and with its load of boilers or tanks was estimated to be about ten or eleven feet in width. In operating the car the employee was standing with his left foot on the running-board and his right foot on the gas. The truck was moving very slowly until just before the accident. The employee had an assistant straightening the wheels and directing him as he started to back. The truck was moving back and then forward in order to start into the driveway on a straight course. The plaintiff, preceded by a Mr.

[705]

Cohen, walked along the right side of the driveway toward the front of the premises. The driver was on the left side of the truck and did not see the plaintiff. Plaintiff saw the truck when he was twenty-five feet from it and the truck was then a few feet over the sidewalk. The sidewalk was fifteen feet three inches in width. Plaintiff was then about ten feet from the corner of the building. He proceeded forward and the truck proceeded to back. Plaintiff testified that the truck did not back straight and that it increased its speed just before the accident. He stated that there were two piles of junk near the corner of the building and that he got mixed up and did not know what to do. He flattened himself against the wall at the corner of the building and the truck struck him, causing the injuries.

Appellant contends that the respondent was guilty of negligence as a matter of law. We do not believe that the record supports this contention. The diagrams and photographs used on the trial are not before us and the exact locations and descriptions of the various objects, such as buildings, fences, gates, scales and piles of junk referred to in the testimony, are not altogether clear. It was respondent’s claim that there was sufficient clearance to pass the truck if it had backed on a straight course and further that he had sufficient time to clear the building if the speed of the truck had not been suddenly increased. Contributory negligence is ordinarily a question for the jury. Although the evidence might have warranted an implied finding of contributory negligence, it cannot be said that- the evidence showed that plaintiff was guilty of contributory negligence as a matter of law.