
    ESTHER SMITH, Respondent, v. GEORGE MOORE SMITH, Appellant.
    
      Decided February 4, 1884.
    
      Negligence—contributory negligence—personal injuries—damages.
    
    Before Sedgwick, Ch. J., Truak and O'Gorman, JJ.
    Appeal from judgment entered on verdict in favor of plaintiff for $2,000, and from an order denying a new trial on the grounds that the verdict is contrary to the evidence, against the weight, of evidence, and because the damages are excessive.
    Action for damages alleged to have been caused by defendant’s negligence.
    The court at general term said: uThe plaintiff, a colored,woman about 60 years old, testified in her own behalf, and her account, of the occurrence is, in'somerespects, incomplete, confused and incoherent. She states that on September 29, 1882, between twelve and one o’clock in the day, she was crossing Lexington avenue from west to east, near the corner of Fifty-sixth street, an,d was knocked down and injured by the defendant’s horse which was attached to the wagon driven by the defendant. She had walked along the south side of Fifty-sixth street, going toward the east, and stood still for a little while at the southwest corner of Lexington avenue, and looked both ways before attempting to cross the avenue. She then stepped off the sidewalk to cross the avenue when the plaintiff’s horse came right up before her, flung his head round and flung her down, and the fore wheel of the wagon went over her legs. She never saw the horse until he came right up before her. She can’t say whether or no she threw her hands out against the horse. She could not tell to save her life at that time what she did. After the accident she got up and walked away.
    “ The defendant testified that he had driven in his one horse buggy down Fifty-sixth street towards Lexington avenue at an easy pace—not more than four miles an hour. A pile of bricks about three or four feet high was heaped at the southwest corner of the avenue and projected into the street. In order to avoid this pile he turned his horse towards the north side of the street, and having done so, turned into Lexington avenue, going south" and keeping about the micldle of the avenue. As he turned into the avenue, going then at the pace of about three miles an hour—just off a walk—he saw the plaintiff standing on the sidewalk at the southwest corner, several feet from the curb. She was looking north up Lexington avenue. After defendant had turned his horse fairly into the avenue, and being then at about the center of Fifty-sixth street, his horse going then at the pace of about four miles an hour, he saw the-plaintiff step off the curb two or three steps, and then stop and stand still, seeming to him to wait until he had passed. When his horse was within ten feet of her, she started across directly in front of his horse. He called out to her—pulled his horse sharply to the left, and brought his horse to a stop. When he called to her, she threw up her hands in a frightened way against the horse, touching him and causing him to start and go on a step or two ; and in putting up her hands she fell backwards, and the right front wheel went over her dress and her legs.
    “He pulled up his horse at the easterly curb of the avenue, got out, and found the plaintiff standing at the corner of the street and avenue. He is positive that she touched the horse first with her hands, and neither the horse nor the wheels had touched her until then. This statement of the defendant is corroborated by two other witnesses who saw the occurrence.
    “Taking these two statements together, that of the plaintiff, and that of the defendant, and reconciling them as far as possible with one another, where they are found to differ, and where they cannot be reconciled, giving credence to the testimony of the plaintiff wherever it does not depend on mere surmise and conjecture, it is by no means clear that there was sufficient- evidence- to go to the jury, that the negligence of the defendant was the cause of the accident-.
    “ All that the law- requires in a case of this kind, is that defendant should exercise ordinary care to avoid inflicting an injury—that is, the degree of care that a prudent man will exercise in his own affairs (Kelsey v. Barney, 12 17. Y. 425). And I cannot see that, in the exercise of ordinary care, defendant would have been expected to do anything other than he did do to avoid collision with the plaintiff. i
    
    
      “ The next question is whether the negligence of the plaintiff herself, was a contributing cause of the injury. ‘ If it appears that the undisputed facts show the omission or commission of some act which the law adjudges negligent, a non-suit should be granted by the court (Stackus v. N. Y. C. &. H. R. R, Co., 79 17 Y. 464). She was bound to prove that no contributory negligence existed (Hart v. Hudson R. Bridge Co., 84 N. Y. 56). It is not enough to prove facts from which either the conclusion of negligence, or the absence of negligence may be with equal fairness drawn, but the burden is upon the plaintiff, to satisfy you that there was no contributory negligence on the part of the deceased ’ (Id.).
    
    “ The plaintiff was bound to exercise ordinary care for her own protection from danger.
    “If she had been reasonably vigilant and active in the use of her senses, she could, no doubt, have seen the defendant as he turned into Lexington avenue, and she would have heard his cry to her, which was heard by other witnesses. From where she stood, near the corner, there was nothing to intercept her vision. At the slow pace at which he moved, there would have been ample time for her to have seen him, if she had looked, and to have waited for him to pass. . •
    
      “The case of Barker v. Savage (45 If. Y. 193, 4, 5), is in point, where under circumstances very similar to those in the case at bar, the court of appeals held that the plaintiff should have been non-suited. The decision of the superior court, in Harnett v. R. E. (49 Super. Ot. 185), was to the same effect; and although the bench on that appeal, was not unanimous, the ground of dissent was not as to the accuracy of the rules of law there laid down, but as to their applicability to the special facts and circumstances of the case then before the court (See also Wilcox v. R. R., 39 If. Y. 358 ; Belton v. Baxter, 54 Id. 245 ; Button v. Hudson R. R. Co., 18 Id. 248, and cases cited therein).
    
      “ Whether the question of contributory negligence should be left, as matter of fact, to the jury, or adjudged by -the court as matter of law, is always difficult and doubtful ; and as the court says, in Stackus v. R. R. (79 If. Y. 464), there are no two cases alike in circumstances, and precedents are of little value. ^
    
      ‘ ‘ In' the case at bar, all the evidence and all legitimate inferences from evidence seem to me, to lead inevitably to the conclusion that but for the failure of the plaintiff to use ordinary care and vigilance in crossing the avenue, no injury would have occurred to her, and that the learned trial judge should have so decided as matter of law.
    “As to the last ground on which the defendant claims a reversal of the judgment and a new trial, viz : excessive damages, little need be said. The injuries to plaintiff, which were immediately apparent, were comparatively trifling and inconsiderable, and did not prevent her from walking from the scene of the accident to Sixth avenue. She would not be entitled by reason of these injuries, to damages to the amount of $2,000. Evidence of the existence of the more important damage, which she claims to have sustained,—displacement of the womb,—depends on her own statement and that of a physician to whom she applied for advice, eleven days after the date of the accident on which this action depends, and to whom she gave her history of her case. To other medical witnesses who visited her on the part of the defendant, the day after the accident, she made no complaint on that account; and they concur in the opinion that such an injury to a woman of her age from such an accident as had occurred to her, would have been improbable, and that if it had occurred, it would have caused severe and immediate pain, of which it is but natural to suppose she would have complained to them. If the existence of this special injury had been not sufficiently proved, the sum allowed in the verdict, for damages, would have been excessive, and it should not be sustained.
    “The evidence of contributory negligence on the part of the plaintiff in this case, is, in my opinion, sufficient to warrant the court in setting aside the verdict, and granting a new trial.
    “ And on the whole case, it seems to me that the ends of justice require a new trial (McDonald v. Walter, 40 W. r.'e si).”
    
      Chauncey S. Truax, for appellant.
    
      Vanderpool, Green & Cuming, for respondent.
   Opinion by O’Gorman, J., Truax, J., concurred.

Judgment and order appealed from reversed, and a new trial ordered, with costs to abide the event.  