
    Lawrence Cohen, an Infant, by Israel M. Cohen, his Guardian ad Litem, Respondent, v. Metropolitan Street Railway Company, Appellant.
    , A pedestrian, starting to cross a track when a street car was fifty feet away, struck and, carried along sixty-three feet by the car, which could have been stopped within twenty-five feet,
    
    In an action brought to recover damages for personal injuries, testimony was given tending to show that the plaintiff was a passenger upon one of the defendant’s street cars; that he alighted at a street crossing and passed around the rear of the car with the intention of crossing the other track; that before doing so he looked in both directions for approaching cars and saw one over fifty feet away; that he then started to cross the track, and that just as he was leaving it he was struck by the car and carried by it a distance of about sixty-three feet. The motorman of the car testified that he could have stopped it within twenty-five feet.
    
      Held, that the questions of the defendant’s negligence and of the plaintiff’s contributory negligence were properly submitted to the jury.
    Van Brunt, P. J., dissented.
    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 New York on the 4th day of February, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of February, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    • Charles F. Brown, for the appellant.
    
      Henry L. Franklin, for the respondent.
   McLaughlin, J.:

The plaintiff, a boy seventeen years of age, on the 3d of July, 1900, while attempting to cross defendant’s tracks at Madison avenue and One Hundred and Thirteenth street, in the city of New York, was struck by one of its cars and injured, and this action was brought to recover damages therefor. The plaintiff had a verdict for $2,000, and from the judgment entered thereon, and from an order denying, a motion for a new trial, defendant has appealed, and asks that the judgment be reversed and a new trial ordered on the grounds, (1) that the verdict was against the weight of evidence; (2) that the plaintiff was guilty of contributory negligence; (3) that the trial court erred in denying a motion to strike out certain evidence, i First. Upon the trial the plaintiff’s testimony tended to show that at the time in question he was a passenger on one of the defendant’s cars. When it approached One Hundred and Thirteenth street he signified to the conductor his desire to leave the car; that the car stopped and he got off, passing around the rear of it with the intention. of crossing the defendant’s tracks ; before doing so, however, he looked in both directions for the purpose of ascertaining whether another car was approaching; ■ that he then saw a car approaching from the north, which was over, fifty feet away, and he started to cross, and just as he was passing from the westerly track he was struck and carried by the car, before it was stopped, a distance of about sixty-three feet. His testimony was corroborated in whole or in part by at least four disinterested witnesses. It also appeared by the testimony of the motorman upon the car that the car could have been stopped, at the rate. of speed at which it was running, within twenty-five feet.

The testimony of the defendant’s witnesses was directly in conflict with that of the plaintiff and his witnesses. According to this testimony, the defendant crawled under the rail extending along the side of the ear upon which he was traveling and jumped upon the track immediately in front of the car which struck and injured him.

This being the condition of the testimony of the respective parties at the close of the case, a prima facie case was made for the jury on the defendant’s negligence. The car was approaching a crossing,, and it was the duty of the defendant at that point to have its car under control. It there had no greater right than the plaintiff had. (Dunican v. Union Railway Co., 39 App. Div. 497.) If the car were over fifty feet away when the plaintiff attempted to cross, the defendant could, by the exercise of due care, have prevented the accident and avoided carrying the plaintiff the distance which it did after he was struck. There was sufficient evidence, therefore, to go to the jury on the question of defendant’s negligence, and the verdict in that respect cannot be said to be against the weight of evidence.

Second. Nor can it be said, as a matter of law, that the plaintiff was guilty of contributory negligence in attempting to cross the defendant’s tracks with an approaching car at least fifty feet away. Whether or not a plaintiff is guilty of contributory negligence is, as a general proposition, a question of fact to be determined by the jury, and it is only where it clearly appears from the uneontradicted evidence that the plaintiff has by its own act contributed to the injury he has received that the court is justified in determining that question as one of law. (Kettle v. Tur, 162 N. Y. 255 ; McDonald v. Metropolitan Street Ry. Co., 167 id. 66.) Here the plaintiff saw the car, and, at the distance which it then was from the crossing, he had a right to assume that the car would be controlled or at least its speed so slackened as to give him time to cross, and this could have been done, as already indicated, had the defendant exercised the care required on its part. The motorman testified that he could have stopped the car within twenty-five feet, and, had this been done, the plaintiff would not have been injured, and, because it was not done, it certainly cannot be said that the plaintiff was guilty of contributory negligence because he assumed that the defendant would exercise the care which the law requires of it.

Third. Nor do we think error was committed by the trial court in refusing to strike out certain testimony given by Dr. Blackmar. On cross-examination Dr. Blackmar was asked: Q. Did the young man tell you: ‘ Doctor, Don’t bother me; I am in intense pain; don’t ask me any foolish questions ? ’ A. The man was not in intense pain the next day, because he was under the influence of morphine. I injected morphine into him ; we always relieve pain by morphine. I know he was, because the order was given. * * * I know, because I can show it to you on the records.” On re-direct examination the doctor was asked: Q. The morphia which he received was injected, was it? A. I am able to state only this, that if we give an order to the nurse — [The Court (interposing) : Oh, well, that won’t do. I strike it out.] I don’t know whether morphia was injected or not of my own knowledge.” Thereupon a motion was made by defendant’s counsel to strike out the evidence of the witness to the effect that at "the time plaintiff made the statement referred to he was under the influence of. mor phine and the same was granted, but subsequently this ruling was-changed, the learned trial judge, saying: The Court will withdraw all statements relative to the question of morphia and let all the-evidence of the physician stand for what it is worth.” This ruling was correct. The witness had first stated that the plaintiff, at the time mentioned, was under the influence of morphine; that he himself had administered the morphine, and, therefore, knew it. Subsequently, he testified that he did not know, of his own' knowledge,, whether he was under the influence of morphine or not, but he did hot deny his former statement to the effect that he had administered morphine to the plaintiff, and, therefore, in -view of these contradictory statements, the court very properly held that the question, as to which statement made by him Was true, was to be determined by the jury.

On the whole, we are satisfied that substantial justice was done between the parties and that the judgment and order should be affirmed, with costs.

Patterson, J., concurred; Hatch, J"., concurred in result; Van: Brunt, P. J., dissented.

Laughlin, J. (concurring):

I concur on thé first two grounds of the opinion, and in the result, arrived at on the third ground. I think the evidence should have been stricken out, but the refusal of the court to do so does not constitute prejudicial error. The evidence was volunteered in defendant’s behalf by the physician, while being cross-examined, to combat, •the theory sought to be developed by plaintiff’s counsel to the effect, that'plaintiff, at the time of making the admissions', was suffering-intense pain and did not fully comprehend what he was saying. The physician made it clear that morphine, if taken, would relieve pain,, but would not affect the ability of the patient to converse intelligently.

Judgment and order affirmed, with costs.  