
    William F. Monck, as Administrator, etc., of William F. Monck, Jr., Deceased, Appellant, v. The Brooklyn Heights Railroad Company, Respondent.
    
      Negligence — the duty of a pedestrian to look out for a street ca/r on a city street differs from that which exists in the case of a steam railroad on a country highway — when a failure to look in the former case does not show contributory negligence.-
    
    In an action brought to recover damages resulting from the death of the plaintiffs intestate, who was a boy fifteen years of age and admittedly sui juris, it appeared that the boy, who had been a passenger on one of the defendant’s street railway cars, alighted from the car at a point ten feet distant from the crossing at a street intersection; that, as the car passed on, he crossed the track upon which it was traveling to a parallel, adjacent track where he was struck by a car traveling in the opposite direction at the rate of between fifteen and eighteen miles an hour; that the distance from the place where the intestate alighted to the place where he was struck was twelve or thirteen feet; that when he started to cross the street the car which subsequently struck him was one hundred and fifty feet distant; that he moved across the street at an ordinary walk,, looking ahead at the point towards which he was walking.
    There was no evidence that the intestate stopped, listened or looked in the direction from which the car that struck him came. There wa§ evidence tending to show that the motorman on the car took no precautions to avert the accident. Held, that the question whether the intestate was guilty of contributory negligence should have been submitted to> the jury;
    That the strict rule, requiring a user of a highway to look and listen before crossing a steam railroad track, does not obtain in its fullest extent in the case of those Who cross the tracks of street surface railways in the streets of villages and cities;
    That the failure of the plaintiff to show that the intestate looked in the direction from which the car that struck him came did not establish that the intestate wa's guilty of contributory negligence as matter of law, as, in view of all the circumstances; it could not be said, ¡as a matter of law, that if he had looked he would have been chargeable with contributory negligence in proceeding across the tracks;
    That, as a general rule, the failure to prove that a pedestrian, crossing the tracks of a street surface railroad upon the public streets of a village or city, looked to observe the approach of a street car, does not establish contributory negligence per se, where the approaching car is at such a distance that, had he in fact looked, he would have been warranted in assuming personal safety in crossing.
    Woodward and Jenks, JJ., dissented.
    Appeal by the plaintiff, "William F. Monde, as administrator, etc., of William F. Monde, Jr., deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 13th day of November, 1903,. upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.
    
      Thomas E. Pearsall [Isaae M. Eajpjper with him on the brief], for the appellant.
    
      I. P. Oelcmd \_George D. Yeomans with him on the brief], for the respondent.
   Hooker, J.:

On this appeal the debatable point is whether or not the question of the intestate’s contributory negligence should have been submitted to the jury. The plaintiff gave evidence tending to show that liis intestate, a boy fifteen years old and admittedly sui juris, on the day of the accident was a passenger on a car of the defendant road, which stopped for him at the crossing. He alighted on the right-hand side of the car, and,-as it passed on, crossed the track it was using to the space between that track and the one parallel. Proceeding, when he got to the middle of the space between1 the rails of the latter track, he was struck by .a ear which was being operated rapidly in a direction opposite to that of the car which he had left. He stepped from the car on which he was a passenger at a point ten feet from the actual crossing at the intersection of the streets and proceeded toward his destination at an ordinary gait, as one would ordinarily walk across a street, and looking ahead at the point toward which he was walking. When he alighted from the •car the street car which struck him was approximately one hundred and fifty feet distant from the point where he was actually struck, and proceeding rapidly in his direction at the rate of between fifteen and •eighteen miles an hour. The evidence tended to show that the motor man in charge of the car which struck him, 'inflicting injuries from which he died, took no precaution to avert the accident. The intestate walked between twelve and thirteen feet from where he alighted to the place where he was struck. Because there is no evidence in the case tending to show that the deceased stopped, listened or looked in the direction from which the car that struck him- came, the respondent insists that the plaintiff has failed to comply with the rule which requires him to give some evidence tending to show-freedom from contributory negligence on the part of his intestate.

It is our opinion, however, that the proof adduced by the plaintiff was sufficient to present a question of fact on this branch of the case for the jury’s determination, and that the judgment should be reversed. In Woodworth v. N. Y. C. & H. R. R. R. Co. (55 App. Div. 23; affd., 170 N. Y. 589) there were no eye-witnesses of the accident which resulted in the death of the plaintiff’s intestate, but it was shown in the evidence that the deceased was an educated, temperate man, forty-five years old, with good eyesight and hearing, careful and cautious in disposition and temperament, and a verdict for the plaintiff was sustained, it being held that the question of whether the deceased was guilty of contributory negligence was properly submitted to the jury. In the discussion of that case in this court Mr. Justice Hirschberq- took occasion to make these pertinent quotations from opinions in the Court of Appeals. “ In Stackus v. New York C. & H. R. R. R. Co. (79 N. Y. 464) it was held, quoting the head note; that to justify a nonsuit on the ground of contributory negligence, the undisputed facts must show the omission or commission of some act which the law adjudges negligence ; the negligence must appear so clearly that no construction "of the evidence or inference drawn from the facts will warrant a contrary conclusion.’ Chief Judge Church said (p. 469): ‘ There are no, two cases alike in circumstances, and, therefore, mere precedents, are of little value, but the authorities, I think, clearly recognize, and establish the distinction here indicated between questions of fact, and law. (Massoth v. Delaware and Hudson Canal Co., 64 N. Y. 524-529; Ireland v. Oswego, Hannibal and Sterling Plank Road Co., 13 id. 533; Renwick v. New York Cent. R. R. Co.,, 36 id. 132; Dolan v. Delaware and Hudson Canal Co., 71 id. 285, 288, 289 ; Hill v. N Y. C. and Hudson R. R. R. Co., 64 id. 652;. Davis v. N. Y. C. and Hudson R. R. R. Co., 47 id. 400;)’ In Tolman v. Syracuse, Bing. & N. Y. R. R. Co. (98 N. Y. 198) Judge Fihoh said (p. 203): The burden of establishing affirmatively freedom from contributory negligence may be successfully borne,, though there were no eye-witnesses of the accident, and even although its precise cause and manner of occurrence are unknown. If, in such case, the surrounding facts and. circumstances reasonably indicate or tend to establish that the accident might have occurred without negligence of'the deceased, that inference becomes possible?, in addition to that which involves a careless or willful disregard of personal safety, and so a question of fact may arise to be solved by a jury and require a choice between possible, but divergent, inferences.’ ” He cited the following decisions as abundantly supporting; the proposition that the facts in that case required submission of .the question of contributory negligence to the jury, and the cases? are equally well referred to here: Jones v. N. Y. C. & H. R. R. R. Co. (28 Hun, 364; affd., 92 N. Y. 628) ; Petrie v. N. Y. C. & H. R..R. R. Co. (66 Hun, 282, 284).; Pitts v. New York, L. E. & W. R. R. Co. (79 id. 546; affd., 152 N. Y. 623); McPeak v. N. Y. C. & H. R. R. R. Co. (85 Hun, 107); Fejdowski v. D. & H. C. Co. (12 App. Div. 589); Noble v. N. Y. C. & H. R. R. R. Co. (20 id. 40 ; affd., 161 N. Y. 620) ; Harper v. Delaware, L. & W. R. R. Co. (22 App. Div. 273) ; Wieland v. Delaware & Hudson Canal Co. (30 id. 85); Pruey v. N. Y. C. & H. R. R. R. Co. (41 id. 158); Kellogg v. N. Y. C. & H. R. R. R. Co. (79 N. Y. 72); Glushing v. Sharp (96 id. 676); Greany v. Long Island Railroad Co. (101 id. 419, 427); Galvin v. Mayor (112 id. 223); Rodrian v. N. Y., N. H. & H. R. R. Co. (125 id. 526); Chisholm v. State (141 id. 246); Schafer v. Mayor (154 id. 466), and Judson v. Central Vermont R. R. Co. (158 id. 597,604). (See, also, Kennedy v. Third Ave. R. R. Co., 31 App. Div. 30, 32; Dunican, v. Union Ry. Co., 39 id. 497, and Mitchell v. Third Ave. R. R. Co., 62 id. 371, 374.)

The case at bar, however, possesses features which lead more strongly to the conclusion that the evidence presents the question of fact for the jury, inasmuch as the strict rule requiring a user of a highway to look and listen before crossing a steam railway track, does not obtain to its fullest extent in the case of those who cross the tracks of street surface railways in the streets of villages and cities. The failure of the plaintiff to show that his intestate looked in the direction from which the car that struck him came cannot be deemed an omission fatal to his right to go to the jury, for it cannot be said as matter of law that had he looked he would have been chargeable with contributory negligence in proceeding across the tracks. The car was approximately 15Ó feet away, and he was but 13 feet from the middle of the track on which he was struck; before reaching the point where the accident occurred the car must needs have crossed a public thoroughfare in the city of Hew York, and it would not have been error for the jury to have drawn the inference that the intestate acted as an ordinarily prudent and careful person would have conducted himself in the situation, taking into account that the lad proceeded on his way as one would ordinarily cross the street, looking in the direction toward which he was destined. A similar question was discussed in Kitay v. Brooklyn, Q. C. & S. R. R. Co. (23 App. Div. 228), in which this court unanimously affirmed a verdict in favor of the plaintiff for damages for the killing of his intestate. In that case it appeared from the testimony of the only witness who actually saw the whole of the accident that he did .not know whether the deceased saw the car when it came along, adding: “I did not seé him look; ” and Mr. Justice Babtlett states the conclusion of the court upon this legal proposition in these words: “According.to the testimony of the surviving brother, the deceased boy started to cross Metropolitan avenue a little way ahead of him, and as he reached the track along which the defendant’s car was coming, he fell upon the street, face forward. At that time, says this witness, the car was four houses away. ( Under these circumstances, if they believed the testimony of the surviving brother, the jury might well acquit the .deceased of any negligence in attempting to cross the track as he did ; for it cannot be held as matter of law,that he would hav.e been at fault, even if he had looked and seen the car, for endeavoring to cross in front, of it when it was eighty feet away, which would be about the distance represented by the combined width of four houses. The failure Of the plaintiff, therefore, to prove whether he actually looked or not cannot be deemed Ian Omission fatal to the recovery.” (See, also, Stevens v. Union Railway Co., 75 App. Div. 602; affd., 176 N. Y. 607; Pelletreau v. Met. St. R. Co., 74 App. Div. 192.) Handy v. Met. St. R. Co. (70 App. Div. 26, 31, 32) possesses points of striking ¡similarity with the ' case at bar. There the plaintiff sued for damages for the death'of her intestate caused by being run over by a car, under circumstances similar to those presented by the record in the case at bar, and was nonsuited. It' did not. appear that the intestate looked before, crossing the track, yet the court held that it was error to dismiss the complaint, and reversed the judgment, saying in the course of its opinion: “ That he could have .passed over unharmed, and that he was not. guilty of contributory- negligence as matter of law in attempting to cross at all, may be inferred from the fact that,- although walking at an Ordinary gait,- he had almost cleared the westerly rail in safety, and 'would have done so had it not been for the great speed at which the car approached him. ‘ Assuming that the plaintiff saw the car approaching very fast, still there was nothing to indicate to him that it was not under control of the .driver, and he had a right to believe that the"'latter would exercise proper care. The plaintiff supposed lie would clear -the car, arid although subsequent^ events proved- that he erred in this conclusion a mere error of judgment was not necessarily negligence, when the proof shows that had the car been properly managed, as the plaintiff had a right to assume, it would be, he would have been enabled to cross in safety.’ (Buhrens v. Dry Dock, E. B. & B. R. R. Co., 53 Hun, 571; cited as authority in Johnson v. Rochester Railway Co., 61 App. Div. 12, 17.) ”

The rule as applicable to such facts as are disclosed by the record in this case may be generally stated to be that the failure of proof that a pedestrian, crossing the tracks of a street surface railroad upon the public streets of a village or city, looked to observe the approach of a street car, does not establish contributory negligence per se, where the approaching car is at such a distance that, had he in fact looked, he would have been warranted in assuming personal safety in crossing. We have examined Pinder v. Brooklyn Heights R. R. Co. (173 N. Y. 519) and Thompson v. B. R. Co. (145 id. 196), and are convinced that neither the facts nor the reasoning in those cases are authority for the respondent’s contention that the question of the deceased’s contributory negligence was properly taken from the jury.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concurred, except Woodward, J., who read' for affirmance, with whom Jerks, J., concurred in separate memorandum.

Woodward, J.

(dissenting):

The simple question presented on this appeal is whether there was any evidence to support the necessarily affirmative contention of the plaintiff that his intestate was free from negligence contributing to the accident. There is some uncertainty in the testimony of the plaintiff’s witnesses as to the exact location of the defendant’s cars at the time of this accident, and although there were five eye-witnesses called in support of the complaint, not one of them points out a single act on the part of the plaintiff’s intestate from which any fair inference of care can be .drawn. This is a nonsuit, and the plaintiff is entitled to all fair inferences, but the rule of law requires that the plaintiff must show affirmatively that his intestate was free from contributory negligence, and this fact does not appear from any reasonable construction of the evidence.

. The accident occurred near the corner of Fifth avenue and Thirteenth street at about nine o’clock on Sunday morning, the day being bright and clear. The plaintiff’s intestate was a passenger in the car going downtown. Just before the car reached Thirteenth street it came to a standstill, apparently at his suggestion, and the deceased, a boy fifteen years of age and concededly sui juris, stepped down into the street and started toward the curb on the right-hand side of the street, going down. He then turned, and passing to the rear of the car walked deliberately across the street in the direction of a drug store in which he was employed. The car from which plaintiff’s intestate alighted started immediately, and the witnesses substantially agree that it had reached the lower side of Thirteenth street when plaintiff’s intestate started to cross the Street. In the meantime a car on the uptown track had been approaching, running, according to the evidence, from fifteen to eighteen miles an' hour, and the only witness who testifies definitely says this car had reached the lower side of Thirteenth street or thereabouts when the intestate started to cross to the drug store. If this was the situation, and it is undisputed, both of .defendant’s cars were at the lower crosswalk on Thirteenth street, while the intestate was about ten feet above the upper crossing, leaving a clear space something more than the width of the street. The evidence is undisputed that with this situation he walked in his usual way across the street without, so fár as the record shows, looking in either direction, or taking any precautions whatever. One witness called by the plaintiff says that his face was in the direction of the drugstore on the opposite side of the street, and, although an opportunity was offered, no evidence was brought out to show that he ever looked in any other direction, although he was employed at the drug store, was sui juris, and must have known that there, were two tracks and that cars were- liable to be passing at any moment. If this is meeting the requirement of furnishing evidence of a lack of contributory negligence, then the rule of law in this respect.might as Well be abandoned at once.

It is true there are cases in the books where there were no eyewitnesses in which the courts have been disposed to accept very slight evidence of care, but we know of no case where there were numerous eye-witnesses in which it has been held that the plaintiff bad established his case by showing a state of facts where the accident could not reasonably have happened if the intestate had exercised any degree of care commensurate with the danger to be ■apprehended. The situation disclosed showed conclusively that the intestate might have seen the car approaching if he had glanced in the direction from which it was to have been expected ; all of the witnesses saw the car for nearly a block before the accident; if it was running very rapidly this fact must have been obvious to him at the short distance of across the street, and a moment’s delay, or a slight increase in his walk, would have obviated the accident. It is evident, however,.from the evidence that the intestate walked across the street without listening or looking; without taking any of the precautions which the situation demanded, and under such ■circumstances it is neither right nor proper to permit a jury to speculate upon the probabilities. The evidence is not capable of supporting any other inference than that of carelessness upon the part of the intestate, and the learned court properly granted the motion to dismiss.

Jenks, J., concurred.

Jenks, J.

(concurring in the dissent of Woodward, J.) :

I concur in the dissent of Woodward, J., whose discussion leaves little to be said. The casualty was not due to miscalculation; but to inattention, and the question involved is not that of a mistake in •calculation based upon the relative speeds of traveler and of car, but as to the act of the traveler in stepping onto the track of the ear when that car was almost upon him. The plaintiff was bound to establish the exercise of some care. (Pinder v. Brooklyn Heights R. R. Co., 173 N. Y. 519.) If plaintiff’s intestate, as he was about to step on the track, had seen the car then almost upon him, he could not assume that it would lessen its speed in accord with any general custom, for it had passed over the crossing, or that if he continued on his way and if the motorman thereupon used every means to arrest the car a collision would thereby be averted. If he saw the car at this moment, he was careless in walking onto its track. If he did not see it under the circumstances, he was equally careless. (Strickland v. N. Y. C. & H. R. R. R. Co., 88 App. Div. 367; Little v. Third Avenue R. R. Co., 83 id. 330; Jackson v. Union Railway Co., 77 id. 161; Lynch v. Third Avenue R. R. Co., 88 id.. 604; Thompson v. Metropolitan Street R. Co., 89 id. 10; Daniels v. S. I. R. T. Co., 125 N. Y. 407. See, too, the cases cited by Judge Seymour D. Thompson in his Commentaries on the Law of Negligence, vol. 2, § 1461.)

, The learned counsel for the appellant would discriminate the Punder Case (supra), in that there was no feature of a crosswalk in it, and that it appeared that the street was wholly unimproved. And he points to the subsequent affirmance of Stevens v. Union Railway Co. (75 App. Div. 602) in 176 New York, 607, and the ruling of this court in Lane v. Brooklyn Heights R. R. Co. (85 App. Div. 85). But in the case at bar the lad was not upon a crosswalk. The car had stopped at a crosswalk, and the lad had alighted from the rear of the car and had passed behind it. He was seeking to reach his master’s shop, which was twenty-live feet distant from the crosswalk. Even at the distance of ten feet, or a car’s length from the crosswalk, he could not. disregard all precautions, for at the very crosswalk itself his rights Were but equal, not paramount. While the learned counsel for the appellant cites many cases, he relies mainly upon Stevens v. Union Railway Co. (supra), and the cases cited by the court in its opinion therein. Stevens’ case. was decided by a divided court and was affirmed by the Court of Appeals without opinion by a vote of four to three (176 N. Y. 607). The Appellate Division in its opinion did not discuss the question of contributory negligence, but cited Pelletreau v. Metropolitan Street R. Co. (74 App. Div. 192) as authority upon the facts. But. in Petletreau’s case there is testimony that the plaintiff looked at the beginning of her walk, that she followed a companion who, preceding her by six feet, crossed without haste in safety, and that the plaintiff’s vision was obstructed by the car from which she had alighted.

Judgment reversed and new trial granted, costs to abide the event.  