
    Harry Kaufman and Minnie Kaufman, Respondents, v. The Interurban Street Railway Co., Appellant.
    (Supreme Court, Appellate Term,
    May, 1904.)
    Negligence — Accident at a point in a street where the rights of hoth parties were equal and neither believed that there was any danger of an accident.
    Where a pedestrian voluntarily stops at a point, on a crosswalk at a street corner, fourteen feet from the curb of the street and two feet from the track of a street railroad, 'curving around the corner, on which she had seen a ear approaching when distant from her one hundred forty feet, and, as the ear reaches her and passes around the curve, is struck by the car’s extreme end, which swung out farther than its body, and is thereby thrown in front of a truck, passing behind her in the street, at a distance of three feet from the curb, and receives personal injuries, the pedestrian cannot maintain an action against the corporation operating the railroad to recover damages for her injuries on the ground of the alleged negligence of the employee in control of the ear, and this because, at the point where the accident occurred, the rights of the parties were equal, each owing the other the duty of ordinary care, and if the pedestrian considered the position chosen by her in the street as a safe one and was mistaken about it, the fact that the operator of the car was of the same opinion cannot charge Mm with negligence without a like fault falling upon her. Neither was negligent or both were.
    
      Appeals by the defendant from two judgments of the City Court of the city of Hew York in favor of the respective plaintiffs, entered on the verdict of a jury, and also from two orders denying the defendant’s motions for a new trial.
    Henry A. Robinson (Bayard H. Ames and E. Angelo Gaynor, of counsel), for appellant.
    Joseph I. Green, for respondents.
   Freedman, P. J.

The plaintiff, Minnie Kaufman, brought her action for personal injuries alleged to have been sustained through defendant’s negligence, and the plaintiff, Harry Kaufman, brought his action for the loss of services sustained by him as husband of the plaintiff, Minnie Kaufman. Both actions were tried together and the trial resulted in a verdict in favor of the plaintiff, Minnie Kaufman, for $1,500, and in favor of the plaintiff Harry Kaufman, for $150.

The facts briefly are: On the 12th day of April, 1902, the plaintiff Minnie Kaufman, while attempting to cross West Third street, at the westerly side of West Broadway, in the borough of Manhattan, was struck by the rear end of one of defendant’s cars, as she stood on the crosswalk about two feet from the track, as the car swung around a curve into West Broadway from West Third street, and was thrown to the ground in front of the wheels of a wagon, passing behind her, in such a manner that the wheel passed over her arm. She walked down the west side of West Broadway, and as she reached the north curb of West Third street and before stepping off into the roadway, she looked to see if a ear was coming. She saw a car seven or eight houses, or from 140 to 150 feet away. She then stepped off the curb, and, as the car was coming easterly, she stopped on the crosswalk two feet north of the track to allow the car to pass. The whole car passed her with the exception of the extreme rear portion on the north side, which, as the car swung around the curve, swung around farther than the front or body of the car and struck her and threw her down in front of a wagon, passing behind her and between the car track and the curb. At the trial there was but little if any conflict as to the material facts, and the questions relating to defendant’s negligence and the contributory negligence of the plaintiff Minnie Kaufman were submitted to the jury, who determined them in favor of the plaintiff. Such submission is now sought to be sustained by a reference to Suse v. Metropolitan St. R. Co., 80 App. Div. 24. But in that case the plaintiff was a passenger and as such was injured, while seated in the car, in consequence of a collision between the rear end of the car and a truck as the car swung around a curve. In that case the defendant was bound to use the highest degree or at least a high degree of care to carry the plaintiff safely. In the case at bar a different rule applies. Minnie Kaufman was a pedestrian and voluntarily stopped at a point two feet from the track and fourteen feet from the' curb. As, according to plaintiffs’ witness, the truck passed at a distance of three feet from the north curb of West Third street, there was a space of eleven feet between Minnie Kaufman and the north side of the truck as it proceeded westerly along West Third street, but the truck was not eleven feet wide. At any rate her rights and the rights of the defendant, at the point where the accident occurred, were equal. Each owed to the other the duty of ordinary care and each had the right to assume that the other would exercise such care. How then does the case stand in this view of the law? She stopped at what she thought was a perfectly safe distance from the track, but she was mistaken. Oan we say of the motorman, who was evidently of the same opinion that she entertained, that his mistake was negligence without a like fault falling upon her? She had the fullest opportunity of knowing and choosing her position and the fullest opportunity of seeking a place of safety for herself or giving notice to the motorman to stop if she had any idea of danger. She evidently believed that she was clear of all danger of a collision, but, with equal and possibly better means of knowing than the motorman, she made a mistake in so believing If then it was negligence for the motorman to make a miscalculation, was it not equally negligent for her to do so ? They owed the same duty to each other and each had a right to assume that the other would discharge it. That being so, it cannot be held that the motorman was negligent in thinking exactly as she thought. Ho different standard of care can be applied to either. If one was negligent, the other was negligent. There was either no negligence on the part of either or there was joint negligence. A mere error of judgment on the part of the motorman, who was exercising reasonable care at the time, has never yet been held sufficient to establish negligence.

For the foregoing reasons the complaint should have been dismissed on defendant’s motion, and the submission of the cases to the jury constituted error.

The judgments and orders must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Truax and Scott, JJ., concur.

Judgments and orders reversed, and new trial ordered, with costs to appellant to abide event.  