
    Sarah J. Trieber, as Executrix, etc., of William Trieber, Deceased, Appellant, v. The New York and Queens County Railway Company, Respondent.
    Second Department,
    November 19, 1909.
    Bailroad—negligence — contributory negligence — failure to stop on signal — absence of headlight — erroneous nonsuit.
    Where a trolley railroad was accustomed to stop to take on passengers at a point where pedestrians were accustomed to pass although there was no sidewalk and where there was four feet clearance between the cars and a fence, a pedestrian by stopping at such place and signaling a car at a time when an incline of ice and snow has been thrown up from the car tracks, is not guilty of contributory negligence as a matter of law.
    Where it is shown that after such signal to stop the car passed without slackening its speed and without a headlight although it was dark, whereby the pedestrian, slipping on the incline of snow, was struck and killed, it is error to nonsuit, for the jury could predicate negligence either upon the fact that the car failed to stop, or the fact that it was proceeding at night without a headlight.
    
      Appeal by the plaintiff, Sarah J. Trieber, as executrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 23d day of January, 1909, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Queens County Trial Term, and also from an order entered in said clerk’s office on the 26th day of January, 1909, directing the dismissal of the complaint and denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Aaron P. Jetmore, for the appellant.
    
      Bayard H. Ames [John Montgomery and James L. Quackenbush with him on the brief], for the respondent.
   Miller, J.:

The plaintiff contends that there is evidence tending to show that her intestate, without fault on his part, was struck by one of defendant’s trolley cars, and received injuries from which he died, and that the accident was due to the defendant’s negligence. The accident occurred about twenty minutes after six o’clock on the evening of January 31, 1908, on the south side of Newtown avenue, a short distance east from its junction with Flushing avenue. On that side of the street the space between the defendant’s tracks and a wire fence on the side of the street was only about five feet and six inches. The overhang of the car was eighteen or twenty inches, so that there was a clear space between the car and the fence of about four feet. There was no sidewalk on that side of the street, but pedestrians were accustomed to walk there, and there is evidence that the defendant’s cars were accustomed to stop anywhere along there to discharge passengers, or on signal to receive them. Snow had fallen the day before and had been swept off the car tracks by the defendant’s sweeper. Bough frozen ice and snow had thus formed on an incline toward the tracks. Just before the accident a person on the opposite side of the street observed the intestate walking west on the narrow space on the south side of the street, between the tracks and the fence, and saw him raise his cane as though signaling to a car, which was approaching from the west, to stop ; and just before the car reached him the intestate was seen to turn as though making an effort to seize hold of the fence. The car passed without slackening its speed, the intestate’s hat was carried along by suction, and he was found lying on the ground near or partly upon the track, ydth his clothing torn and with two lacerated scalp wounds sufficient to cause his death. The headlight of the-car was not lighted.

It seems to me that nothing is left to conjecture respecting the movements of the deceased immediately prior to the accident. There is evidence which would justify the inference that he had alighted fro in a car at the junction of Flushing and Newtown avenues, and had walked up Newtown avenue while waiting for another car; and either discovering the dangerous footing by the side of the tracks had turned back, or, on hearing the approaching car, had turned to signal it to stop. I do not discuss that evidence because it seems to me wholly immaterial how he happened to be where he was. It was a public street, where pedestrians were, in the habit of walking, and where the public were in the habit of boarding and alighting from cars, and the deceased had a right to be where he was. The evidence plainly shows that he tried to stop the car, evidently with the purpose of boarding it, and the inference is certainly warranted that, when he observed the speed of the car and the fact that it was not going to stop he appreciated his danger and tried to save himself by grasping the fence; and that, because of the suction of the car or the uncertain footing, or both, he was drawn or fell against the car, and thus received the injuries from which he died. It could not be said that he was guilty of contributory negligence as matter of law, for he had a right to assume that the car would stop on his signal, as had theretofore been the practice. If the car had stopped, as he had a right to expect, the dangerous situation would not have arisen.

The only question, then, is whether the defendant was negligent in not stopping the car. The appellant’s counsel asserts that the defendant was negligent in fourteen different respects, and it may be that, in the multiplicity of grounds, he failed to call the attention of the trial court to the real one. If the defendant’s cars were in the habit of stopping on signal at the point where the deceased was, it was plainly its duty to stop this particular car, and the jury would be justified in finding that its failure to do so constituted negligence.' Probably the motonnan did not see the deceased, either because of inattention, or because the headlight was not lighted. In either case he was careless, for certainly a jury would have little difficulty in saying that a motorman who ran a car after dark without a headlight was negligent.

The respondent relies on the case of Lamb v. Union R. Co. (195 N. Y. 260). In that case it was held that the decision of this court disregarded the familiar rule that inference could not be based on inference, presumption upon presumption; but that case was in no respect like this. Here there was an eye-witness who saw the entire occurrence except for the brief interval of time when the car was between her and the deceased, and the inference as to what occurred during that time is based, not on inference, but on facts sworn to by her. In respect to the other cases cited to sustain the judgment, it is sufficient to say that we have examined them and find none of them applicable to the facts disclosed by this record.

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

Hieschberg, P. J., Jenks and Burr, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  