
    BELTON against BAXTER.
    
      Commission of Appeals;
    
    
      June, 1873.
    Reversing 33 N. Y. Supr. Ct. (1 Jones & S.), 182.
    Cause of Action.—Contributory Negligence.
    A foot traveler who attempts to cross a public thoroughfare ahead of approaching vehicles, under circumstances involving a close estimate of his chance of crossing safely, cannot recover for injuries sustained in consequence of the negligence of the driver of a vehicle concurring with his own mistaken estimate.
    A foot traveler crossing a city street has no prior right of way over a passing vehicle.
    Daniel Belton sued Edward W. Baxter, and others, in the New York superior court, for damages sustained by him, by being run over when crossing Second-avenue, in the city of New York, by a cart driven by a servant of the defendants.
    As plaintiff approached the avenue by Fourth-street, a horse railroad car was coming up the avenue, and behind it was the defendant’s cart. Plaintiff judged that he could cross the avenue before they passed. As he was crossing, the horse car stopped, or slackened speed, to let a passenger alight, and the driver of defendants’ cart turned off the track and drove by the car, so that when plaintiff had safely passed the track on which the car was, he was knocked down by the cart passing it on the other side. Plaintiff recovered a verdict of one thousand dollars.
    The superior court, at general term, held that the driver of a cart was bound to take care to avoid injuring foot passengers as well as other vehicles; and that it was a question for the jury whether the driver had exercised a due degree of caution in this case to avoid running over foot passengers who might be rightfully on the cross-walk. Reported in 33 N. Y. Supr. Ot. N. (1 Jones & S.), 182. Defendants appealed.
    
      N. C. Moak and E. New, for the appellants.
    
      Stephen A. Walker, for the respondents.
   Reynolds, C.

There should be a trial in this case, for the following reasons :

1. The plaintiff was guilty of negligence, which certainly contributed to his injury, and this is apparent upon his own testimony. He wanted to cross Second-avenue on Fourth-street, where he resided. It was near evening, but still daylight, and he saw a Second-avenue car coming just beyond Third-street, and behind it a cart coming. The car was coming pretty fast, and all this was plainly seen when he was between eleven and twelve, yards from the curbstone in Second-avenue. He hurried on a little, and made his “calculation” that he could cross in front of the car “before the cart could get up.” It is thus evident that the plaintiff expected the cart to attempt to pass the car, as it did, and his “calculations” were accordingly made. He stepped on,—the car came faster than usual,—he just passed the heads of the horses attached to the car, and at that moment came in contact with the horse and cart of the defendant, or some of its appendages, and received the injury. This makes out a plain case of negligence. He clearly saw the possible danger, made his “calculations ” to pass ahead of both car and cart, and failed. The carman of the defendant had no reason to suspect that any such attempt would be made. He could not see the plaintiff, as the street car obstructed the sight, and it can scarcely be said that he was guilty of negligence in driving his cart. It is negligence per se for a foot traveler to attempt to cross a public thoroughfare ahead of vehicles of any kind under such circumstances,—upon nice “calculations” of the chances of injury. If such attempt be made, and the “ calculations” deliberately made fail, to the plaintiff’s injury, he can have no redress for injuries received in his mistaken effort. It is not the exercise of common or ordinary care.

2. The judge charged the jury that the plaintiff “had a right to go in front of the vehicle and cross at that time, if he did not place himself in a position where this vehicle, by proper care, could not avoid him. He had as much right to cross there as the vehicle had to go on in the other direction.”

It may be possible that, as a mere abstract legal proposition, this may have been correct, but as applied to this case it obviously tended to mislead the jury and relieve the plaintiff from the exercise of any care.

No matter how negligent the effort of the plaintiff' to cross the avenue may have been—he might still recover if the defendant could have avoided the infliction of the injury. It is very obvious also that the learned judge iaknded to give the jury to understand, that the foot traveler had some superiority of right over vehicles in the city of New York, for. he tells them: “I hold it as a principle of law that if I attempt to cross Broadway or any other crowded thoroughfare, I am not obliged to turn back to avoid a vehicle, if that vehicle, by reasonable care, can avoid me. It is the business of the driver to stop and allow me to pass. It is not my business to turn and go back for the purpose of avoiding him. I am there by right, and my right is paramount to his, because I am there first in point of time.”

In this case it was very unfortunate, that the plaintiff was not there first in point of time, but both parties reached the point of collision at the same instant of time without the one first there expecting to meet the other. But it seems clear that such instructions were in violation of the rule laid down by the court of appeals in Barker v. Savage, 45 N. Y. 191, 195.

The learned judge who delivered the opinion of the general term of the superior court quoted approvingly the charge of the judge at the trial, the correctness of which we feel compelled to doubt, and then added that such a rule had been frequently asserted by that court, and he thought should be sometimes at least recognized by the drivers of vehicles, who, it is also said, “ practically and habitually regard foot passengers as mere intruders upon and obstructors of the highway, who can be run over with impunity.”

We entirely agree that the drivers of vehicles in any public thoroughfare should observe the law without any special reference to the court by which it is pronounced. The evidence does not disclose the ordinary habits in this respect of the drivers of vehicle^ in the city of New York, and we are not at liberty to take judicial notice of the fact, even if sustained by the personal observation and experience of any one or more of the learned judges of the superior court of that city; and this cause must be retried.  