
    George Bertsch, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence —injury at a street intersection to one who, 15 feet from a street railroad, ■ sees a car appi'oaching 250 feet distant, drives across the tracks and is struck by the car — charge of the court.
    
    A person desiring to drive across the tracks of a street surface railroad at a street intersection, who, when about 15 feet from the first track, observes a car from ■ 250 to 300 feet distant approaching at the rate of from twelve to fifteen miles an hour, is not guilty of contributory negligence in proceeding to cross the track in advance of the car.
    In an action brought by such a person to recover damages sustained by him in consequence of a collision with the car, the court may properly charge that he had “the right to assume that the car coming south-would not be run in 'such a way as to endanger him. Every person who uses the street crossings has a right to assume that the people who are operating street cars are exercising them with a due regard to the rights of others, and that they will exercise ordinary care and prudence in their operation. To that extent they have a right to rely upon the conduct of the people who are operating street cars.”
    Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of June, 1901, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 22d day of July, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      Henry Mel/ville and Charles F. Brown [Henry A. Robinson with them on tlie brief], for the appellant.
    
      Otío H. Droege, for the respondent.
   Woodward, J.:

The evidence which the jury in this case appears to have accepted as giving a true statement of the accident in which the plaintiff sustained serious injuries and which is sufficient to support the judgment, indicates that on the 19th day of November, 1899, the plaintiff was driving a wagon westerly along Waverly place, which crosses Sixth avenue in the borough of Manhattan at right angles, intending to cross the said avenue. Before reaching the tracks* of the defendant, which operates two lines of rails upon Sixth avenue, the plaintiff looked in both directions and saw a car approaching from downtown. He drove forward, and when about 15 feet from the first track, which was used for the uptown cars, he looked uptown and saw a car about'250 to 300 feet away coming downtown at a rapid rate. He does not appear to have stopped, the uptown car passing him before he had reached the tracks and his horse passed in the rear of the car going uptown. When the plaintiff’s horse had reached the downtown track and th,e plaintiff was in a position to look uptown he looked in the direction of the approaching car and found that it was only 20 or 30 feet aw;ay, still running at the same rate of speed at which it had been advancing when he first saw it, some 300 feet away. With matters in this situation the plaintiff used his whip and succeeded in getting himself out of range of the car, but the rear wheel of the vehicle was struck by the car of thé defendant and the wagon was thrown over, the plaintiff was thrown upon the pavement and the injury of which he complains resulted. The jury found a verdict in favor of the plaintiff. There was a clear conflict of evidence, the defendant’s witnesses testifying that the plaintiff’s wagon was struck by the car going uptown, but the jury refused to accept this version of the accident, and brought in a verdict for the plaintiff, resulting in a judgment for $4,346.93. The defendant appeals from the judgment and from an order denying a motion for a new trial upon the minutes.

The evidence of the plaintiff and his witnesses is that the car which struck his wagon was running at the rate of twelve to fifteen miles per hour, and the defendant asks this court to hold that the plaintiff was guilty of contributory negligence in going upon the track in front of the car knowing that it was running at this rate. We •think the learned court correctly charged the jury that the jfiaintiff had u the right to assume that the car coming south would not be run in such a way as to endanger him. Every person who uses the street crossings has a right to assume that the people who are operating street cars are exercising them with a due regard to the rights of others and that they will exercise ordinary care and prudence in their operation. To that extent they have a right to rely upon the Conduct of the people who are operating street cars.” If the charge had closed with the first sentence, there might be doubt that it failed to state the law correctly, but as modified and explained by the remainder of the charge, there is no reason to believe that the jury received any false impressions, for the charge says no more •than that the plaintiff had a, right to assume that the car of the defendant would be operated in a manner consistent with his rights at a street intersection, where both parties have an equal standing. If the car had approached this crossing under control, as was the duty of the defendant, there can be no doubt that the plaintiff would, in the exercise of that reasonable degree of care which the law demands of him as a condition of recovery, have been able to pass over in safety. Because • the car was running at a rapid rate of speed 300 feet distant was no notice to the plaintiff that the defendant intended to continue this rate of speed in disregard of the rights of others at a street intersection, and the evidence clearly indicates that when the plaintiff next had an opportunity of observing the defendant’s car it was so close upon him, and his horse was so far advanced, that the use of the whip was the only practical thing left. At least the jury were justified in holding that the action of the plaintiff, under the circumstances, was an exercise of that degree of care which a reasonably prudent man would or should have used under similar • circumstances, and the courts have been reluctant to hold that the plaintiff had failed, to sustain the burden of proof under facts such as are here presented. It is not the duty of persons driving in a populous city to wait until there are no cars in sight; they have a right at street crossings precisely the same as those which belong to the street surface railroads, and if these corporations will persist in operating their cars in disregard of this right of others, they must expect to settle for the damages which their negligence entails upon individuals. This case so closely resembles in its material facts that of Mowbray v. Brooklyn Heights R. R. Co. (59 App. Div. 239) that it does not appear necessary or profitable to discuss the matter farther. ' The plain, tiff’s evidence is sufficient to support the judgment, and the damages •do not appear to us excessive, where a young man bids fair to go through life with a permanently injured limb, and who has already suffered much by reason of the wrong done him by the defendant.

The judgment and order appealed from should be affirmed, with costs.

All concurred.

Judgment and order unanimously affirmed, with costs.  