
    Dennis O’Connor, as Administrator, etc., of John O’Connor, Deceased, Respondent, v. Union Railway Company of New York City, Appellant.
    
      Street sweeper — care which he is required to exercise to prevent injury from a. street car.
    
    A street sweeper in the employ of a city, at work upon a public street between the rails of a street surface railway, is not bound to exercise the same degree of care with respect to street cars that would be required of ordinary pedestrians.
    In an action to recover damages resulting from the death of the street sweeper in consequence of his being struck by a rapidly approaching street car, which gave no notice of its approach until it was within ten feet of him, evidence that from time to time at intervals of a minute or so he looked for the approach of cars upon the track on which he was working, and that he was doing his work in the usual and proper way, is sufficient to warrant a finding that he exercised such care as was required of him under the circumstances.
    Appeal by the defendant, the Union Railway Company of New York City, 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 loth day of May, 1901, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 4th day of June, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles F. Brown, for the appellant.
    
      J. Arthur Corbin, for the respondent.
   Patterson, J.:

The trial of this action resulted in. a verdict for the plaintiff, from the judgment entered upon which and from an order. denying a motion for a new trial the defendant appeals.

The plaintiff’s intestate was a street sweeper employed by the city of New York. While he was engaged at work on Third avenue, near One Hundred and Sixty-eighth street, he was struck' by a trolley car of the defendant and received injuries from which he died. It is urged by the appellant that the evidence was insufficient to establish either negligence of the defendant's- servant in charge of the car, or freedom from contributory negligence of the plaintiff’s intestate. Concerning the negligence of the defendant, the evidence on the part of the plaintiff was sufficient to present that issue to the jury. The plaintiff’s intestate was working on the public street, where he not only had the right but was required to be, and it was the duty of the motorman in charge of the defendant’s car to use reasonable care in avoiding him. (Smith v. Bailey, 14 App. Div. 285.) There is testimony tending to show the want of proper or reasonable care of the motorman in approaching the plaintiff’s intestate. There is a great conflict of evidence respecting the details of the accident. The evidence on the part of the plaintiff is to the effect that the deceased was at work between the rails of the easterly track of the defendant’s road on Third avenue, between One Hundred and Sixty-eighth and One Hundred and Sixty-ninth streets; that the defendant’s car approached at a rapid rate of speed, and no bell was rung nor other warning or signal given by the motorman until he was within about ten feet of the. deceased, who then looked up, but was struck before: he could escape contact ivith the car. The testimony on behalf of the defendant, on the other hand, was. that the plaintiff’s intestate was at work oh the highway to the east of the easterly rail, and that he was not in a position of peril; that the car was not proceeding rapidly; that the motorman was ringing his bell as the car was approaching, and the decedent stepped backward and upon the track, and that the car could not be stopped in time to avoid the accident. The verdict of the jury, accepting the plaintiff’s version of the occurrence, is sustained by abundant evidence and cannot be interfered with. The inference of negligence on the part of the motorman was authorized by the evidence. (Hennessy v. Brooklyn Heights R. R. Co., 57 App. Div. 27 ; Bengivenga v. Brooklyn Heights R. R. Co., 48 id. 515.)

The issue as to contributory negligence was properly and fairly presented to the jury. It has been held that persons who are employed by a municipality and working upon the public highway are not bound to exercise the same degree of care while in the street that would be required of ordinary pedestrians. (Smith v. Bailey, supra ; Dipaolo v. Third Ave. R. R. Co., 55 App. Div. 566.) Nevertheless, such persons are required to use reasonable care to avoid being run over. It appeared in evidence in the present case that the plaintiff’s intestate, while engaged in working on the track,- from time to time and at intervals of a minute or so, looked for the approach of cars upon the track on which he was working, and also that he was doing his work in the usual and proper way. While the testimony given by the witnesses for the defendant would locate the plaintiff’s intestate at a place outside of the tracks when the car was but a short distance from him, it was for the jury to say what- his position was, at and just before the contact of the car with him, and hence, for them to determine whether or not he. did exercise such care as was required of him to avoid approaching vehicles.

It is claimed by the defendant that the trial judge erroneously instructed the jury upon the subject of contributory negligence. Upon that topic the court said : “ If the man exercised reasonable care in that way (looking back for a car) he would not be guilty of contributory negligence by standing and sweeping and not actually looking back all the time to see whether a car was coming. If, under those circumstances, exercising that reasonable degree of care which an ordinarily prudent person would exercise under like circumstances, if a car comes upon him without warning, through the negligence of the defendant, no claim of contributory negligence can be reasonably maintained.” That was a concise and proper rule for the guidance of the jury in this particular case, and accords with authority upon that subject. As said in Smith v. Bailey (supra): “ Undoubtedly those persons who are engaged upon the streets in the public service cannot exercise the same diligence in getting out of the way of passing vehicles as those persons can who are simply crossing the streets and avenues; and it cannot be expected that they should, 'because if their time were taken up by looking out for coming vehicles, it would be impossible for them to carry on their work. They cannot, however, be reckless. They are bound to use reasonable care in seeking to avoid the dangers by which they are surrounded.” There was no error, therefore, in the instruction given to the jury.

• Finally, it is contended that the damages are excessive, and in that we agree. The recovery should be reduced to $5,000. If the plaintiff stipulates to allow such reduction, the judgment as so modified and the. order will be affirmed, without costs, otherwise they must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., O’Brien, McLaughlin and Laughlin, JJ., concurred.

On plaintiff stipulating to allow reduction mentioned in opinion, judgment as so modified affirmed, without costs, and order affirmed, without costs, otherwise judgment and order reversed, new trial ordered, costs to appellant to abide event.  