
    (88 Misc. Rep. 21)
    SCHOENFELD v. NEW YORK RYS. CO.
    (Supreme Court, Appellate Term, First Department.
    December 4, 1914.)
    Street Railroads (§ 117)—Collisions—Contributory Negligence—Question for Jury.
    .The court cannot say as a matter of law that a pedestrian may not assume that the motorman of a car over a block away will not have his ear under control when approaching a crossing, so that whether the pedestrian, attempting to cross the track, was guilty of contributory negligence, precluding a recovery for injuries in a collision with the car, was for the jury.
    [Ed. Note.—For other cases, see Street Railroads, Cent. Dig. §§ 239-257; Dec. Dig. § 117.*]
    Appeal from Municipal Court, Borough of Manhattan, Second District.
    Action by Abraham Schoenfeld, by Lazarus Schoenfeld, his guardian ad litem, against the New York Railways Company. From a judgment of dismissal at the close of plaintiff’s case, plaintiff appeals. Reversed, and new trial ordered.
    Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ.
    Samuel Schleimer, of New York City (Meyer D. Siegel, of New York City, of counsel), for appellant.
    James L. Quackenbush, of New York City (William J. Sheils, of New York City, of counsel), for respondent.
    
      
      For other cases see” same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   SEABURY, J.

The accident happened at a street crossing, at which place the rights of the plaintiff and the defendant were equal. We cannot say, as a matter of law, that the plaintiff was not justified in assuming that the motorman would have his car under control when lie approached this place. The car was over a block away when the plaintiff attempted to cross the track, and whether his act in attempting to cross the track constituted contributory negligence should have been submitted to the jury.

Upon the facts, this case does not resemble those cases where the driver of a wagon turns his horse and wagon in front of a car a few feet away. The question in dispute was essentially one of fact, which should have been submitted to the jury, who could have determined it after taking into account the situation of the parties and the rate of speed at which the car was traveling.

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