
    Altha M. Wells, Admr’x, App’lt, v. The Brooklyn City R. R. Co., Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 8, 1890.)
    
    1. Negligence—Street railroads.
    The driver of a horse car is bound to be watchful, especially in a crowded city, so as not to injure persons crossing the street.
    2. Same.
    Plaintiffs intestate before attempting to cross the street look;d both ways and saw the car fifty feet away, but before he got across he was struck by the horses, thrown down and injured. The driver did not see him until the horses were within six feet of him. Held, that the driver did not perform his duty and that the contributory negligence of deceased was a question for the jury; that it was not negligence, as matter of law, to attempt to cross in front of a car fifty feet away.
    Appeal from judgment entered upon dismissal of the complaint.
    Action to recover for the death of plaintiff’s intestate, caused, as alleged, by defendant’s negligence.
    Payne, McGuire & Low, for app’lt; Morris & Whitehouse, for resp’t.
   Barnard, P. J.

There was sufficient evidence produced upon the part of the plaintiff to go to the jury. The accident happened on the 27th of November, 1888, between six and seven o’clock in the evening. The plaintiff was sixty-one years of age, and attempted to pass over Flushing avenue in front of the defendant’s street car and was killed. When he started from the corner- of Throop and Flushing avenues, and when he started to cross,1 he was observed to look both ways and start after this observa-1 tian. The car was then fifty feet away. The deceased got across the first and second track and partly across the third track, when he was struck by the car horses and thrown under the wheels of the car and fatally injured, although the car did not pass over him. The negligence of the defendant consists in this: The car was going faster than usual and didn’t slack up its speed until the man was struck, although in full view of the driver of the car. The witness Schnidler thought he would have time to cross safely with the high rate of speed which continued until the accident; when the driver put on brakes to stop the car. The driver did, not see the deceased until he got within twelve feet of him, and the horses were within six feet of him. It was then too late to save the man who was crossing, as it takes about eight feet to stop the car. The deceased was a little deaf. The driver was bound to be watchful, especially in a crowded city, so as not to injure persons crossing the street. Moebus v. Herrmann, 108 N. Y., 319; 13 N. Y. State Rep., 648.

It does not apjiear that he did so if he could see fifty feet ahead of him and did see a man crossing the street and kept up a rapid rate of speed until the horses were within six feet of the person crossing, and when the accident could not be prevented. The contributory negligence of the deceased was a question for the jury. It was not negligence, on his part to attempt to pass in front of a car fifty feet away, as matter of law. The neglect of the defendant being found, it will go far towards acquitting the deceased of neglect. He probably assumed that the rate of speed was less than it was, or that the driver would" slightly slacken the speed. McClain v. Brooklyn City R. R. Co., 116 N. Y., 459 ; 27 N. Y. State Rep., 549.

The order dismissing complaint and the judgment therein should be reversed, and a new trial granted, costs to abide event.

Dykman and Pratt, JJ., concur.  