
    Jacob Zenner, Appellant, v. The Brooklyn Heights Railroad Company, Respondent.
    First Department,
    June 2, 1916.
    Railroad — negligence — attempt to pass in front of approaching trolley car — contributory negligence —failure of motormanto sound bell.
    Where a pedestrian when within six feet of a track and in the middle of a block saw a trolley car approaching one hundred and fifty feet away, but proceeded and again. saw the. approaching ear seventy-five feet distant moving more rapidly than when first seen, and continued in front of the approaching car until it was too late for him to retrace his steps and avoid an accident, he is guilty of contributory negligence, which bars a recovery.
    At a point where there is not a regular street crossing, the rights of a street railroad to operate its ears are superior to those of pedestrians.
    
      As the plaintiff had stopped and saw the car approaching, no negligence of the defendant can be predicated upon the fact that the motorman did not sound his beii.
    Laughlin and Dowling, JJ., dissented, with opinion.
    Appeal by the plaintiff, Jacob Zenner, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 2lth day of October, 1915, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.
    
      John F. McIntyre [L. F. Fish with him on the brief], for the appellant.
    
      D. A. Marsh, for the respondent.
   McLaughlin, J.:

I think the complaint was properly dismissed. The evidence, in my opinion, did not establish the negligence 'of the defendant or plaintiff’s freedom from contributory negligence.

According to the plaintiff’s own testimony, when he was about six feet from the point where he was struck by defendant’s car, he stopped and looked, and then saw the car approaching about 150 feet away. He proceeded, looked again, and saw the car 75 feet away, moving more rapidly than when he first noticed it. Notwithstanding this fact he deliberately walked onto the track directly in front of the approaching car. He then looked again, and while he attempted to retrace his steps, the car was so close to him he was unable to get out of its way. The plaintiff at all the times was practically facing the car and there was nothing between him and it to obstruct his view.

There was an obligation resting upon him to take at least some precaution for his own safety. He had no right to assume, as contended, that the car would be operated in such a manner as to permit him safely to cross in front of it. (Freeman v. Brooklyn Heights R. R. Co., 82 App. Div. 521.)

Nor do I think that the rights of the parties at this point were equal. It.was not at a regular crossing and it has frequently been held that between street crossings — and I think the same rule here applies — the right of a street railroad to operate its cars upon its tracks is superior to that of a pedestrian. (Fenton v. Second Avenue R. R. Co., 126 N. Y. 625; Thompson v. Buffalo R. Co., 145 id. 196; Barney v. Metropolitan St. R. Co., 94 App. Div. 388.) The truth is the plaintiff deliberately chose to place himself in a position of danger and his act in doing so was, in my opinion, negligent. It may be assumed that the motorman saw him approaching the tracks and that he did not sound the gong on the car. But there was no reason why he should do so. The plaintiff had stopped and saw the car approaching, and the motorman had a right to assume that he would wait until the car passed. As was said in Byrnes v. Brooklyn Heights R. R. Co. (148 App. Div. 794): Pedestrians can and do stop just short of the danger line in thousands of instances every day, and unless there is something to indicate to the motorman that a different result is contemplated, there is no reason why he should not operate his car at the usual rate of speed at points other than street crossings.”

When all of the testimony of the plaintiff is considered, the only inference which, as it seems to me can be fairly drawn from it, is that without any regard for his own safety he stepped directly in front of the car and in this way the accident occurred.

In principle the case cannot be distinguished from Lofsten v. Brooklyn Heights R. R. Co. (184 N. Y. 148); Byrnes v. Brooklyn Heights R. R. Co. (supra); Tully v. New York City R. Co. (127 App. Div. 688); Freeman v. Brooklyn Heights R. R. Co. (supra); Weiss v. Metropolitan St. R. Co. (33 App. Div. 221; affd., 165 N. Y. 665).

I think the judgment should be affirmed, with costs.

Clarke, P. J., and Scott, J., concurred; Laughlin, J., dissented.

Laughlin, J. (dissenting):

This is an action to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant in the operation of one of its cars on its east-bound track on the Williamsburgh Bridge Plaza at the Brooklyn end of the bridge on the 25th day of September, 1913. The plaintiff was engaged in peddling fruit on the public streets, and had been for a period of three weeks since his last return from Europe. He was fifty-two years of age and resided in the borough of Brooklyn and was walking across the plaza on his way to a local bridge car with a view to crossing the bridge at about twenty minutes after five o’clock in the morning, when he met with the accident. While crossing the open plaza, which was used generally by the public, and approaching the defendant’s surface track from Brooklyn to Hew York, according to the testimony of the plaintiff, he looked to see whether. a car was approaching on the track which he would come to first, being the one from Brooklyn, and observed none. He then looked the other way and saw a car approaching on the track from Hew York about half a block, which he describes as 150 feet, distant. He proceeded on across the first track and after crossing it he looked again and saw the car approaching from Hew York about a quarter of a block distant, and proceeded on, and says that after taking one or two steps, passing the first rail of the track, I looked, and the car was already right by me. I looked, and I noticed that I was in danger,” and that he then turned around and the car struck him on the left side, throwing him to the ground and inflicting the injuries of which he complains. Hé further testified that when he looked the third time he had crossed the first rail of the track on which he was struck, and that the car was then about fifteen feet from him, and was then coming fast and faster than when he first observed it, but was not sounding, and had not sounded, any gong, and that after first seeing the car he walked about fifteen feet before he was struck. The evidence shows that there was no sidewalk or crosswalk on the plaza, and that people were accustomed to cross it at any point, and that the plaintiff was passing it in a direct line toward the local bridge car. The only evidence presented by the plaintiff was his own testimony with respect to the circumstances under which he met with the accident, and that of a physician, with respect to his injuries. At the close of this evidence the non-suit was granted.

According to the testimony of the plaintiff, which must for the purposes of this appeal be accepted as true, after he had crossed the track on which the cars passed from Brooklyn to Hew York and was between the two tracks, which evidently were the customary distance apart, the car which struck him was a quarter of a block distant, or one-half the distance from him that it was when he first observed it, which would, on his estimate "of the distance, be seventy-five feet. Although he says he observed that the car was coming fast when he first saw it, he had passed over one track walking at least ten feet while it was coming seventy-five feet and he being at the track when it was seventy-five feet distant. I am of opinion that it cannot be said as matter of law that he was guilty of negligence in proceeding on across tlie track on a public place where the cars of the defendant did not have a paramount right, but where the rights of the parties were equal. This evidence, I think, presented a prima facie case, which entitled the plaintiff to have it submitted to the jury to say whether or' not he was guilty of contributory negligence in not stopping, and whether the defendant was guilty of negligence in accelerating the speed of the car and not affording him an opportunity to cross the track. (Legare v. Union Railway Co., 61 App. Div. 202; Handy v. Met. St. R. Co., 70 id. 26; McDermott v. Brooklyn Heights R. R. Co., 89 id. 214; Monck v. Brooklyn Heights R. R. Co., 97 id. 447; Kennedy v. Third Ave. R. R. Co., 31 id. 30; Copeland v. Met. St. R. Co., 78 id. 418; affd., 177 N. Y. 570; Lawson v. Met. St. R. Co., 40 App. Div. 307; affd., 166 N. Y. 589.)

I am of opinion, therefore, that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Dowling, J., concurred.

Judgment affirmed, with costs.  