
    Samuel G. West, Respondent, v. The New York Transportation Co., Appellant.
    (Supreme Court, Appellate Term,
    June, 1905.)
    Negligence — Plaintiff ran into cab — Defendant not liable.
    Where plaintiff, standing on a street corner, saw defendant’s electric cab coming down the street at a moderate pace, and in crossing the street without looking at or for the cab, either walked or ran into it, striking it on the side and was injured, the defendant is not chargeable with negligence. ,
    Appeal by defendant from a judgment rendered in favor of plaintiff in the City Court of the city of New York, after a trial before the court and a jury, and also from an order denying defendant’s motion for a new trial.
    Arthur K. Wing, for appellant.
    Charles Schloemann (John C. Robinson, of counsel), for respondent.
   Scott, J.

It is not easy to see upon what the jury predicated a finding of negligence on the part of defendant’s driver. The plaintiff started to cross Eighth avenue, at the northeast- corner of Forty-second street going from east to west. Before he left the curb he saw the defendant’s electric cab coming down Eighth avenue at a moderate pace. When he had reached the north-bound or easterly track he looked south, as he says, to see if a car was coming, and seeing none proceeded and almost immediately walked or ran into the cab, and was thrown down. He did not look at or for the cab after leaving the curb. There is no evidence that the cab increased its speed, and it must have been running quite slowly because it was stopped within a very few feet. It is true that there is some evidence that no bell was rung by the driver, but that seems to be unimportant because the plaintiff had seen the cab coming and, therefore, needed no warning of its approach. There is also some evidence that the cab had changed its course before the plaintiff struck it. This is disputed and even if true is not so significant as it might have been if the cab had run into plaintiff. The universal testimony is that plaintiff ran into the cab, striking it on the side. The irresistible conclusion from the evidence is either that plaintiff forgot all about the - cab and hastened heedlessly across the street, or else that those witnesses speak truthfully who say that he came suddenly out from behind an uptown car. In either event we find no evidence sufficient to charge the defendant. The damages too are, to say the least, very liberal. The plaintiff's actual loss in money was small and his injuries properly traceable to the accident were not serious. The case presented a proper case for the granting of the motion for a new trial.

MacLean, J., concurs.

Dug-ro', J., concurs in result.

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