
    Mary Mulligan, Respondent, v. Third Avenue Railroad Company, Appellant.
    
      Negligence—injury to a woman stepping back from a track on seeing an approaching street car, and finding behind her approaching on the other track a wagon, between, which and the car she is injured.
    
    In an action brought against a corporation which maintained a street railroad on Third avenue, in the city of New York, to recover damages for personal injuries sustained by the plaintiff, while attempting to walk in the daytime from the west to the east side of that avenue, on the southerly crosswalk at Eighty-fourth street, the plaintiff testified that she crossed the southbound track directly after some trucks and a car had passed before her on that track; that as she stepped upon the westerly rail of the north-bound track she saw a north-bound car, which was then about twenty-four or twenty-five feet away, approaching her very rapidly; that she turned to retrace her steps, but discovered a large truck approaching her on the southbound track, the easterly wheels of which truck extended about fourteen inches ■ east of the easterly rail of the south-bound track; that she tried to stand in the center of the space between the north-bound car and. the south-bound truck, but that she was struck and injured by the north-bound car; that, on account of the trucks and the south-bound car, she did not see the north-bound car nor did she see the south-bound truck before she reached the north-bound track.
    The plaintiff also gave testimony tending to show that the gong on the northbound car was not rung as it approached the street crossing; that the speed of the car was about eight or nine miles an hour and that a car traveling at this speed could be stopped within fifteen or twenty feet; that no attempt was made to lessen the speed of the car as it approached the crossing.
    The motorman of the car admitted that he saw the plaintiff standing between the two tracks, and that he made no attempt to stop the car until after the plaintiff was struck.
    jS"eM, that jt could not be said, as matter of law, that the plaintiff was guilty of contributory negligence or that the defendant was free from negligence;
    That the court would not be warranted in setting aside, as against the weight of evidence, a verdict in favor of the plaintiff.
    Van Brunt, P. J., and Ingraham, J., dissented.
    Appeal by the defendant, the Third Avenue Railroad 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 9th day of April, 1903, upon the verdict of a jury for $800, and also from an order entered in said clerk’s office on the 23d day of March, 1903, granting the plaintiff an additional allowance of five per cent upon the amount of the verdict, and also from an order entered in said clerk’s office on the Ith. day of April, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      Arthur Ofner, for the appellant.
    
      Franklin Pierce, for the respondent.
   Laughlin, J.:

The action is brought to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant. The' principal contention on the part of the defendant is that there is no evidence of the defendant’s negligence and that the plaintiff was guilty of contributory negligence. This is the third verdict rendered in favor of the plaintiff in this action. The case has been twice before this court. (Mulligan v. Third Ave. R. R. Co., 39 App. Div. 663; 61 id. 214.) On the first appeal the judgment in favor of the plaintiff was reversed, this court expressing the opinion that there was not sufficient evidence of negligence on the part of the defendant to take the ease to the jury, but holding that, assuming that the plaintiff established a f rima facie case, the court erred in instructing the jury on a proposition of law. On the second appeal the judgment in favor of the plaintiff was reversed and a new trial granted, four members of the court concurring in the proposition that an error was committed in the reception of evidence, and the majority expressing the opinion that there was no negligence shown on the part of the defendant, but two dissenting from that view, and expressing the opinion that the evidence required the submission of the case to the jury.

It is claimed in the points for appellant that the evidence is the same as that upon the former appeal, but the reverse -of this is claimed by counsel for respondent. The learned trial justice states in a memorandum denying the motion for a new trial that “ the ease presented by the plaintiff is here appreciably stronger than on the former trial.” The evidence in favor of the plaintiff, as presented by this record, appears to be materially stronger than that presented on the former appeals, judging from the statements of facts found in the former opinions of this court.

The plaintiff was a teacher in a public school on Eighty-fourth street, between Madison and Park avenues. On the 20th day of April, 1896, a pleasant but somewhat cloudy day, she left the. school about twelve o’clock to go to her luncheon at the southeasterly corner of Seventy-eighth street and Second avenue. She passed along the southerly side of Eighty-fourth street- and was crossing Third avenue on the southerly crosswalk when she was struck and injured by a north-bound car. She testified that when she arrived at Third avenue she saw some trucks passing downtown on the south-bound track; that a car was following behind them ; that after waiting for them to pass she attempted to cross right behind the car; that she had crossed the downtown track in safety and was just about to cross the uptown track, had in fact placed her foot upon the westerly rail of the uptown track, and just then she saw a car approaching'from the south very rapidly and it appeared to be about twenty-four or twenty-five feet away; that deeming herself in danger she stepped back and turned one side to see if she could retrace her steps and just then she saw a large, clumsy, heavy truck coming down, the easterly wheels being about fourteen inches east of the easterly rail of the downtown track, and when she turned to retrace her steps the horses * * * seemed to be right at me. * * * The truck reached me, just reached me, and I tried to ,stand between the np-going car and the down-going truck, which was a very small space; I do not know how much; I tried my best to stand in the centre as well as I could. The next thing I was struck by the car and thrown over; struck on the right side, and thrown over on the left side; ” that the car did not lessen its speed, but on the contrary increased its speed; that it was not after she stepped on the track that she first saw the car.; that she saw the car and stepped on the track and then saw that it was coming so rapidly that she turned or stepped back and glanced quickly to see if she could retrace her steps; that she had not seen the north bound car or the truck which was -approaching on the south-bound track before she reached the north-bound track; that she did not see the upcoming car on account of the trucks and ear that were going down ; that as she was passing in the rear of the south-bound car and before she stepped on the north-bound'track she did not hear any gong rung and that after she -had passed the south-bound car there were no obstructions between her and the approaching north-bound car. The testimony of the plaintiff was in the main corroborated by the testimony of a disinterested eyewitness who further testified that he did not hear any gong rung and that the car that struck the plaintiff did not stop until it passed over Eighty-fourth street. Evidence was also given in behalf of the plaintiff showing that this was a cable line ; that the speed of the cable on the day in question was the usual speed of eight or nine miles an hour; that the track between Eighty-third and Eighty-fourth streets was substantially level; and that under the circumstances existing at the time in question a car running at the speed of the cable could be stopped at this point within fifteen or twenty feet.

The motorman called in behalf of the defendant testified that at no time was the plaintiff actually upon the track upon which this car was approaching; that the car was going at three-quarters the speed of the cable; that upon seeing the plaintiff come from behind a truck which was going down the south-bound track, he immediately released the grip and put on the brake; that he rung the bell and went past her at about half speed; that the speed of the car was not increased within twenty-five feet of the crossing; that the front of the car did not strike her; that as he passed her she was standing between the tracks; that he saw her between the tracks and saw the approaching truck, the wheels of which, he says, were in the grooves of the rails of the track; that he saw “ the position that she was in ” and made no attempt to stop the car until after she was struck; that on the first trial he testified that he approached the crossing at full speed; that after the front of the car passed the plaintiff about fifteen feet he received three bells, a signal of danger, and he stopped on a line with the north crossing; that he considered that she had plenty of room to stand between the truck and the car; that his car had been approaching at full speed, but was going at only three-quarters speed when he first saw the plaintiff, which was when he was within ten or twelve feet of her; that a car going at the full speed of the cable cannot be stopped within fifteen feet; that as he passed the plaintiff the horses of the approaching truck were trotting, but they had not “ got on a line with her at that time.” The conductor, who was a witness for the defendant on the last preceding trial, was not called this time. A passenger on the car, called by the defendant, testified that it was an open car and the plaintiff was struck by the second or third stanchion; that the plaintiff was standing between the truck passing south and the car • that the plaintiff passed “ within two feet of the truck, and when she Came up she wanted to get back again,, and she could not go back on account of the truck was right behind her, and at the same time she was struck on the head.” • An experienced motorman, called, testified that the shortest space in which a car running at the speed of the cable could be stopped was about thirty or thirty-five feet.

This evidence presented a question of fact for the consideration of the jury. It could not be said as matter of law either that the plaintiff, was guilty of contributory negligence or that the defendant ■ was free from negligence. . Plaintiff was crossing the street at a regular crossing where those driving vehicles and operating street cars were bound to take notice that pedestrians might be passing and to recognize their equal rights. After plaintiff had crossed the south-bound track and was about to step on the north-bound track ■this car, according tó her testimony, was twenty-four or .twenty-five feet' south of the crossing, a sufficient distance, if the .car was operated with care and caution, and the motorman had it under' control, as he should have had on approaching a crossing, to have enabled Jher to pass in safetybut upon taking her first step upon the track she discovered that the car was approaching rapidly and that its speed was accelerated, and fearing that she could not cross in' safety, she attempted to retrace her steps. Upon stepping or turning back, and looking around, she found that a vehicle was rapidly approaching her from the north on the south-bound track and so close that she could not pass it. She decided to remain ' between the car and the'"vehicle. The motorman, according to his ■ own testimony, saw the situation as it existed, including the position of the approaching vehicle with reference to the plaintiff. According to her testimony the jury were justified in finding that there was not room for her to stand in safety in the exercise of reasonable care between the vehicle and the car, as the left-hand wheels of the vehicle were between the inner rails of the tracks. In these circumstances. the jury were justified in finding that the motorman ■ should either have afforded her an opportunity to pass in front of •his car, or have passed her with the speed reduced so that'she would not be terrified and he would be able to control his car and look out for her safety. This he did not do, but.' proceeded, as he admitted, at half the speed, of the cable and paid no attention to her after the front of the car passed. Nor can it be said that the evidence preponderates in favor of the defendant. Very little evidence on the main issue was introduced in its behalf; and, in our opinion, this court would not be warranted in setting aside this verdict of the jury as against the weight of the evidence.

The exceptions taken by the defendant and presented upon the appeal have been examined, but we think they present no error. The defendant interposed no objection to the plaintiff’s motion for an extra allowance. Not having objected or excepted, no question in that regard is presented for review.

It follows that the judgment and orders appealed from should be affirmed, with costs.

Patterson and Hatch, JJ., concurred; Van Brunt, P. J., and Ingraham, J., dissented.

Ingraham, J. (dissenting):

I dissent from the affirmance of this judgment. On the two former appeals (39 App. Div. 663; 61 id. 214) this court upon substantially the same testimony held that there was no evidence to justify the jury in finding that the defendant was negligent; and upon the third appeal it is proposed to reverse these two considered. judgments and sustain a verdict based upon the negligence of the defendant. On the last appeal (61 App. Div. 214) the reasons that sustain that conclusion are stated.

Van Brunt, P. J., concurred.

Judgment and order affirmed, with costs.  