
    Peter McCabe, Respondent, v. The Interurban Street Railway Company, Appellant.
    (Supreme Court, Appellate Term,
    January, 1906.)
    Street railways — Operation — Injuries to persons near tracks — Contributory negligence — Error of judgment.
    Where one about to cross the tracks of a street railway at a place where they curve, as he puts his foot on the first rail sees a car, standing about, ten or twelve feet away, start up and, judging he will be unable to cross in front of it, backs away from the rail, but not so far but that the rear end or over-hang of the car hits him as it swings around the curve, he cannot recover; for it is too improbable for belief that he backed up as far as he was able, though he so testifies, and what undoubtedly happened was that he backed as far as he thought necessary and made a miscalculation.
    Appeal by the defendant 'from a judgment in favor of the plaintiff, entered upon the verdict of a jury in the City Court of the city of Hew York, and also from an order denying defendant’s motion for a new trial.
    Henry A. Robinson (Bayard H. Ames and Anthony J. Ernest, of counsel), for appellant.
    Patrick J. O’Bierne, for respondent.
   Scott, J.

It is difficult to see wherein there was shown either negligence on the part of defendant’s motorman, or freedom from negligence on the part of plaintiff. The plaintiff and a companion were walking abreast down Sixth avenue on the easterly side. At Fifty-first street there is a track curving to the southward into Sixth avenue. As plaintiff approached this track one of defendant’s cars was standing stationary in Fifty-first street, about ten or twelve feet from the point at which plaintiff was about to cross the track. As plaintiff put his foot on the first rail of the track the car started up. He saw it and, judging that he would not be able to cross in front of it, hacked away from the rail. While the car was traversing this ten or twelve feet, he succeeded in getting so far back from the track that the front part of the car passed him safely. As the car swung around the curve, however, the rear end or over-hang swung away from the track and hit him on the leg, throwing him down and producing the injuries for which he sues. While it is a well-known physical fact that in rounding a curve the over-hang of the ordinary car swings away from the track in the direction of the outside of the curve, yet it is equally well known that it does not and cannot swing very far. The evidence in this case is that it swings out about eighteen inches or two feet. It was also shown that the car was about thirty feet in length. The plaintiff’s story, in effect, is that he was able to back away so as to get clear of the front of the car while it was going ten or twelve feet, but that, although he kept backing all the time, he was not able to get back two feet further while the car was going about thirty feet. This story is too improbable to be believed, especially as his companion, who reached the rail at the same time he did, was able to back up sufficiently to clear the rear end of the car as well as the front. What undoubtedly happened was that plaintiff backed up as far as he thought necessary, and made a miscalculation. If this be the true state of facts, and it seems to be physically impossible that the plaintiff’s story, that he kept backing as fast as he could, is true, the verdict and judgment cannot be sustained. Matulewicz v. Metropolitan St. Ry. Co., 95 N. Y. Supp. 7; Kaufman v. Interurban St. Ry. Co., 43 Misc. Rep. 634. There was some conflict of evidence whether or not the motorman rang his bell before starting. This, however, was unimportant, because the plaintiff testifies that he saw the car before it started.

The judgment must be reversed and a new trial granted, with costs to appellant to abide the event.

Blahchabd and Dowlihg, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.  