
    Henry Nicholsburg, Respondent, v. The Second Avenue Railroad Co., Appellant.
    (New York Common Pleas—Additional General Term,
    February, 1895.)
    One who is suddenly called upon to adopt one of two courses in the face of danger caused by the negligent act of another is not chargeable with contributory negligence because the one chosen was not the wiser and safer of the two.
    Appeal from a judgment of the' District Court in the city of New York for the seventh judicial district, rendered by the justice, without a jury, in favor of the plaintiff.
    Action for injury to plaintiff’s vehicle, sustained in a collision with defendant’s street car.
    
      Max Ba/yerdorfer,,for respondent.
    
      Payson Merrill, for appellant.
   Bischoff, J.

An examination of the record leads to the conclusion that the determination of the justice below is .to be supported.

From the evidence it appears that the-plaintiff was justified in his attempt to cross the track in front of the defendant’s car, there being a sufficient distance betwéen the vehicles to render the act consistent with' his duty as imposed by law, in view.of the facts testified to with regard.to -the slow approach of -the car..

It is not disputed that the driver of the car suddenly caused an acceleration of its speed, and the, evidence supports the conclusion that this acceleration was the cause of the accident, and that it was due to a disregard of that care upon the part of the defendant’s servant- which was- called for by the circumstances.

It is claimed', however, that the plaintiff was chargeable with contributory negligence by reason of his failure to drive directly across the track, as was his original intention, but at an accelerated speed when he observed the sudden impetus given to the car. ,

What he actually did was to turn his vehicle and endeavor to drive along the track in front of the car, and-away -from it, to enable the driver to lessen its speed in time to avoid a collision, but the attempt was unsuccessful and the accident restilted.

•It might be assumed that by taking a different course "the plaintiff could have avoided the Injury, but this sudden call upon him to adopt one of two courses in the face of danger was caused by the defendant’s negligent act in creating 'the dangerous situation, and we are not to say that a recovery was unauthorized because the course chosen was not shown to be obviously the wiser and safer of the two. Quill v. R. R. Co., 16 Daly, 313; 126 N. Y. 629; Lowery v. R. R. Co., 99 id. 158.

The judgment should be affirmed, with costs.

Bookstaver, J., concurs.

Judgment affirmed, with costs.  