
    Henry Nicholsburg, Resp’t, v. Second Avenue Railroad Company, Appl’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 4, 1895.)
    
    Negligence—Contributory.
    Where a sudden call upon plaintiff to adopt one of two courses in the face of danger is caused by the defendant’s negligent act in creating the dangerous situation, a recovery is not unauthorized because the course chosen is not shown to be obviously the wiser and safer one.
    Appeal from a j udgment in favor of plaintiff, rendered by .a justice without a jury.
    
      Peyson Merrill, for app’lt; Max Bayerdorfer, for resp’t.
   Bischoff, J.

An examination of the record leads to the conclusion that the determination of the justice below is to be supported. From the evidence it appears that the plaintiff was justified in his attempt to cross the track in front of the defendant’s car, there being a sufficient distance between the vehicles to render the act consistent with his duty as imposed by law, in view of the facts testified to with regard to the slow approach of the car. It is not disputed that the driver of the car suddenly caused an acceleration of its speed, and the evidence supports the conclusion that this acceleration was the cause of the accident, and that it was due to a disregard of that care upon the part of the defendant’s servant which was called for by the circumstances. It is claimed, however, that the plaintiff was chargeable with contributory negligence by reason of his failure to drive directly across the track, as was his original intention, but at an accelerated speed, when he observed the sudden impetus given to the car. What he actually did was to turn his vehicle, and endeavor to drive along the track, in front of the car, and away from it,' to enable the driver to lessen its speed in time to avoid a collision ; but the attempt was unsuccessful, and the accident resulted. It might be assumed that by taking a different course the plaintiff could have avoided the injury, but this sudden call upon him to adopt one of two courses in the face of danger was caused by defendant’s negligent act in creating the dangerous situation, and we are not to say that a recovery was unauthorized because the course chosen was not shown to be obviously the wiser and safer of the two. Quill v. N. Y. C. & H. R. Railroad Co., 16 Daly, 313; 32 St. Rep. 612 ; Id., 126 N. Y. 629; Lowery v. Man. Railway Co., 99 N. Y. 158. The judgment should be affirmed, with costs.  