
    Edward J. O’Reilly, Respondent, v. Fred J. Davis, Appellant.
    Second Department,.
    January 21, 1910.
    Motor'vehicles —?negligence — contributory negligence of pedéstrian,
    A person who was run jdown by an automobile cannot recover for the injuries received where he testifies, that before stepping upon the roadway he looked ■ and did not see the.yeliicle although he had an unobstructed view for 300 feet and was struck before he had walked 5 feet. Such -testimony would imply that the vehicle was going 130 miles an hour, and the impossibility shows that the pedestrian did! not look .with the care required by'the' law.
    Hirsohberg, E. J.';/ dissented--
    
      Appeal by the defendant, Fred J. Davis, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 22d day of May, 1909, upon the verdict of a jury for $275, and also from an order entered in said clerk’s office on the 17th day of May, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      JE. Clyde Sherwood \Frank V. Johnson with him ón the brief], for the appellant.
    No appearance or brief for the respondent.
   Thomas, J.:

The plaintiff, with a companion, was walking toward the west on a trolley track, and hearing, but not seeing, a car coming in front of him, stepped to the right into a familiar road, frequented by vehicles, and was struck by the defendant’s automobile. His statement is: “Just as I was stepping off the rail I looked back, to see if anything was coming along there and didn’t see a thing, and then I stepped off and walked four or five feet and I was hit by something. This is perfectly and absolutely correct. * * * From the place where I was hit up to the top of that hill at Bachman’s hotel, I could see right up there; there was nothing to obstruct my view. * * * The crown of that hill toward Bachman’s from where I was hit is, I judge, two hundred feet. I could see an automobile when it got on top of that hill.” So, able to see 200 feet, and looking, the plaintiff walked 5 feet and was hit. That is, while he was walking 5 feet the automobile came 200 feet. Hence the automobile was going forty times as fast as the man, and assuming that the man was walking 3 miles an hour, the automobile was going 120 miles an hour. This impossibility shows that the. man did not look with the care demanded by the law.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Woodward, Burr and Bich, JJ., concurred; Hirschberg, P. J., dissented.

Judgment and order reversed and new' trial granted, costs to abide the event.  