
    Ellen Tully, Respondent, v. New York City Railway Company, Appellant.
    First Department,
    July 8, 1908.
    Negligence — street railway — crossing track — duty of pedestrian,
    .One seeing an approaching car while attempting to cross a street must before stepping upon the track ascertain whether or not it is safe to do so.
    Where in an action for personal injuries it is not shown how far away the car which struck the plaintiff was when she stepped upon the track, or how many feet she was from the track when she looked and saw a car, or what time elapsed after looking before the accident occurred, the mere fact that she was struck by a car while leaving the track does not justify a finding that defendant was negligent, or that plaintiff was free from negligence.
    A refusal to charge that plaintiff after leaving the curb was required to look before she tried to cross the track is error.
    Latohlin, J., dissented with opinion.
    Appeal by tbe defendant, tbe blew York Oity Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of tbe county of blew York on tbe 31st day of January, 1908, Upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 31st day of January, 1908, denying tbe defendant’s motion for a new trial made upon'the minutes."
    
      Bayard H. Ames, for the appellant.
    
      John H. Regan, for tbe respondent.
   McLaughlin, J.:

Action to recover damages for personal injuries alleged to have been caused by defendant’s negligence. About eight o’clock on tbe evening of .the 2d of April, 1906, the plaintiff, then about sixty-eight years of age, while. crossing the Bowery on tbe downtown crossing of Bleecker street from west to east, was struck by one of the defendant’s cars and injured. She testified that before attempting to cross the street she looked up and down and saw a car about two blocks away, and then proceeded to cross; that'as she was near the last rail of the fourth track she was struck ; that she -did not hear a bell sounded and the car which struck her came very fast; that she did not know what car it was that hit her because, to use her own language, “ I wasn’t looking at the car. I don’t know which car it was hit me.”

This is the only evidence offered tending to show defendant’s negligence, except that the witness Kepko, who ivas about 100 feet from where the accident occurred, testified that he saw the plaintiff crossing the street but'did not see her struck by the car; that when he saw her she was walking very slowly, very feebly,” and he did hot hear any gong sounded. And the witness Scherer, who testified that he saw the plaintiff after the accident and assisted her to the hallway; ” that he could not say he heard a gong sounded but there were gongs sounding all' day along the Bowery.’

At the conclusion of plaintiff’s case the defendant moved to' dismiss the complaint upon the ground that plaintiff had failed to establish a cause of action against the defendant and had failed to show her own freedom from negligence. The motion was denied and an exception taken.

In denying this motion I think the court erred. The plaintiff, while crossing the street, was as much obligated to look out for her own safety as was the motorman. She saw, according to her own testimony, a car approaching (whether it was the one which subsequently struck her does not appear), and having noticed this car she could not step upon the track without having first ascertained whether it was safe to do so or not. (Jackson v. Union R. Co., 77 App. Div. 161.) There is absolutely no evidence which shows, or tends to show, how far away the car which struck her was when she stepped upon the track, or how many feet she was from the track on which she stepped when she looked and saw a car, or how much time elapsed after looking before the accident occurred. The evidence, therefore, did not justify a finding that the defendant was negligent or the plaintiff free from negligence. (Lofsten v. Brooklyn Heights R. R. Co., 184 N. Y. 148; Cranch v. Brooklyn Heights R. R. Co., 186 id. 310; Dorienza v. New York City R. Co., 112 App. Div. 913; affd., 187 N. Y. 567; Trauber v. Third Avenue R. R. Co., 90 App. Div. 606; affd., 181 N. Y. 541; Jackson v. Union R. Co., supra.)

The fact that the plaintiff was struck by a car as she was leaving the track did not, of itself, justify a finding that the defendant was negligent or that she was free from negligence. (Kappus v. Metropolitan St. R. Co., 82 App. Div. 13.) The truth is the plaintiff, according to her testimony, paid no attention to her own safety ■ after she left the corner, and, therefore, her conduct does not susf tain a legal inference that she exercised the degree of care which the law imposed upon her, and a finding of the jury to the contrary is based-solely-upon speculation and nothing else.

I am also of the opinion that the judgment must be reversed -because the court refused to charge the following request: “I ask Your Honor to charge that the plaintiff was required-to look after she left the curb before she tried to cross the track.” It is difficult to imagine why this request was refused. . Plaintiff, as already suggested, was as much bound.to look out for herself as the motorman was. She could,not, having■ observed a car approaching, heedlessly cross the -street and pay no -attention to it, because the motorman had as much right' to assume that she would keep out of the way óf the car as she had to assume that the motorman would so control the car that it would not injure her*

The court also erred in refusing to charge a request to the effect that there was no evidence that the plaintiff was of infirm mind or had any physical impairment prior to the accident. There was no evidence to show that the plaintiff, prior to the -accident, was of infirm mind or had any physical impairment whatever.

The judgment and order appealed from, therefore, must be* reversed and a new trial ordered, with costs to appellant to abide event.-

Ingbaham, Houghton and Scott, JJ., concurred; Laughlin, J., dissented.

Laughlin, J. (dissenting):

The evidence shows that the plaintiff, who was about seventy years of age, was crossing the Bowery from west to east on the southerly line of Bleecker street at about eight o’clock in the evening on the 2d day of April, 1906, and was struck by a north-bound surface car on the third or fourth track in the Bowery from the westerly curb thereof. The. plaintiff testified : “ I crossed over the first, line of cars and the car was about two blocks away and I crossed over, and’ as I was getting over I couldn’t avoid it; the car came upon me and hit me upon the leg. * * * As I attempted to cross- this street I saw a car two blocks away, and I proceeded to cross. I did ■ not notice the car again before' it struck me, until it got nearly upon me. It was upon me, you might say; ” that the car was coming very fast and. she was about leaving the track, had only one step to take to clear the track when she discovered it near her and was unable to take that before the car caught her. The distance from the curb to the track upon which plaintiff was struck is not shown, nor may we take judicial notice that it is further than in other streets. The presumption is in favor of the judgment. It is incumbent upon the' appellant to show error. A policeman, whose attention was drawn to the plaintiff while she was crossing the street just before the accident, testified as follows: “ I saw her crossing the street just prior to being struck by the car. She was walking very slowly, very feebly.” Both the plaintiff and the police officer gave testimony tending to show that the gong was not sounded. The defendant neither offered any testimony nor explained its failure to call the motorman or conductor. In addition to the inference that might- properly be drawn by the jury from the appearance of the plaintiff on the stand, there was this evidence of her extreme age and that at the time she was walking slowly and very feebly. The court properly drew the attention of the jury to these facts and instructed them that the duty of ordinary care did not require such vigilance on her part as might be expected from a strong young person, and stated that the same care should not be expected of a child as of an adult, or from a feeble-minded person as from á strong-minded person, or from a person physically and mentally infirm as from one young, strong and alert,' and that plaintiff was only required to exercise reasonable care in view of her age and physical condition. Counsel for the defendant thereupon requested the court to instruct the jury that there was no evidence that the plaintiff was of infirm mind or had any physical impairment prior to the accident, to which the court responded, “ Gentlemen, yon have seen the plaintiff. Use your own judgment,” to which counsel- for- the defendant duly excepted. The plaintiff made no claim for damages on account of being infirm or weak-minded, and the discussion between counsel and the court on that subject could not have affected the question of damages, for the jury must have clearly understood the purpose of the court in alluding to the physical or meiital infirmity of a party. It was entirely unnecessary for the court to instruct the • jury that there was -no evidence that the plaintiff was mentally infirm at the time of the trial or physically infirm at the time of the accident as- requested. The. jurors, as fairly intelligent men, must have understood that those suggestions were merely made to ■enable them to appreciate the standard by which the plain tiff’s1 conduct was to be tested. Any inference that the jury were misled thereby to the prejudice of the defendant is, I think, unwarranted.

The court also properly declined the request to charge that it was the duty of the plaintiff, as matter of law, to look again toward the approaching car after leaving the curb. As already observed,'the distance she was obliged to walk before she was struck does not appear. . It does appear that she was walking very slowly and very feebly and that she was nearly over the track, which justifies the inference tliat when she reached the track she had ample time to cross if the defendant had respected her rights and approached the’crossing with reasonable .care.

I, therefore, vote to-affirm the-judgment, with costs.

Judgment and order reversed, new trial ordered, costs to appellant, to abide event..  