
    Jennie A. Cosgrove, as Executrix, etc., of Jane Cosgrove, Deceased, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence — the question, had a plaintiff acted, in a certain way, “ would there have been any accident,” is improper.
    
    In an action to recover damages resulting from the death of the plaintiff’s testatrix, who was struck and killed by one- of the defendant’s cable cars while, crossing a public street in the city of New York, a passenger .on the car, who testifies that both he and the motorman shouted a warning to the plaintiff’s testatrix previous to the accident, should not' be allowed to answer the following question: “If she had stopped and stood still when you say she was shouted at by the motorman and yoiirself, would there have been any accident?” as that question should be passed upon by the jury.
    Van Brunt, P. J.; and Ingraham, J., dissented.
    Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 31st day of October, 1901, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 30th day of October, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      Theodore H. Lord, for the appellant.
    
      Richard B. Aldcroftt, Jr., for the respondent.
   Patterson, J.:

The plaintiff’s testatrix sustained injuries on the 4th of June, 1897, by being struck by a cable car belonging to the defendant) as she was crossing Broadway, near Thirty-third street, in the city of New York. She died on the 7th of May, 1900, and there was proof that her death resulted from the injuries she received on the first-mentioned date. Upon the trial of the action the plaintiff recovered a verdict and from the judgment entered thereon the defendant appeals, claiming that there was not sufficient proof to go to the jury on the subject of the defendant’s negligence and that there was no proof that the plaintiff’s testatrix was free from contrib'ntory negligence. It is also claimed that the damages are excessive.

There was evidence sufficient to go to the jury upon the subject of negligence of the motorman in charge of the car. The accounts given by the various witnesses of the manner in which the accident occurred are conflicting, but the testimony of the witness Leech was of such a character as to authorize the jury, if they believed it, to find that the motorman of the car was negligent. The accident occurred as the plaintiff’s testatrix attempted to cross Broadway from the northerly point of Greeley square. She was walking in an easterly direction. The northerly point of Greeley square is almost on a line with the southerly side of Thirty-third street. The witness Leech was standing on the sidewalk at the northerly end of Greeley square and when he first observed the car (by which the plaintiff’s intestate was subsequently struck) the woman was about five and one-lialf feet from the west track, nearer the north line of Thirty-third street than the south line and the car was at a point about twenty-five feet south of the south line of Thirty-third street. The motorman did not ring a bell and this witness testified that the oar was going very fast. He did not actually see the contact of the car with the decedent, but he saw that there was a commotion and an accident and he passed over and went toward the car and saw a woman on the step badly injured. There is no question concerning the identity of the car, nor the time at which the accident happened. Other witnesses identify the plaintiff’s testatrix as the person injured at the time and place and by that car. Another witness, Rodman, who was a passenger on the car by which the decedent was struck, swore that when the car was approaching Thirty-third street it was going very fast — about-as fast as he ever rode in a trolley car — and he did not hear any bell rung. When he first saw the woman who was struck she was about twenty-five or thirty-five feet from the car. He saw her before she was struck, and at that time she was about midway between the south and the north line of Thirty-third street, a little more towards the northerly side, on the east track, going up. Another witness, Daisy Gantly, testified that she was looking out of a window at the time of the .accident and saw the woman crossing Broadway at Thirty-third street, going diagonally to the north, and when she first saw her she was in the middle of the track, “ right in the middle of Thirty-third street, with no car in sight,” and afterwards the car struck her'; the car was running north and she did not hear any bell. Two of the witnesses for the plaintiff testified that the car was not -stopped until it had reached a point from forty to forty-five feet above the north line of Thirty-third street.

From all the evidence on behalf of the plaintiff, the jury, believing-it, were authorized to find that the motorman was proceeding at a. rapid rate of speed; that he gave, no signal of the approach of the-car by the sounding of a gong, and that the decedent was suddenly-struck down by this rapidly approaching car without any warning-given her of its approach.

Concerning the lack of proof as to the freedom of the plaintiff’s, testatrix from contributory negligence, the details of the occurrence: as'they may be gathered from the evidence are such as to show that, that subject was properly left to the jury.

It is further claimed by the appellant that the judgment should be reversed because of the erroneous ruling of the court in the rejection of evidence. One of the defendant’s witnesses,-Mertens, had testified that he was a passenger on the car which struck and injured the plaintiff’s testatrix, and he gave an account of what he saw of the accident. The effect of his testimony was to exonerate the motorman from negligence. He said he heard the motorman shout to the woman, and that he himself shouted, and he was then asked by defendant’s counsel the following question : “ If she had stopped and stood still when you say she was shouted at by the motorman and ypurself, would there have been any accident ? ” This question was properly excluded. It was asking the witness to determine the-whole- case. That was one of the questions of fact for the jury to-pass upon. It was for them, to say what would or would not have -occurred under certain given conditions, and the question here propounded was very different from that considered in McDermott v. Third Ave. R. R. Co. (44 Hun, 109).

The damages are not excessive, -and the judgment and order appealed from should be affirmed, with costs.

Hatch and Laughlin, JJ., concurred; Van Brunt, P J., and. Ingraham, J., dissented.

Ingraham, J.

(dissenting):

I dissent' on the ground that the verdict establishing defendant’s, negligence and plaintiff’s freedom from contributory negligence is. against the weight of evidence.

Judgment and order affirmed, with costs.  