
    Edward W. Simpson, Respondent, v. James S. Whitman, Appellant.
    Second Department,
    December 21, 1911.
    Motor vehicles—negligence — injury to bicycle rider by automobile — contributory negligence.
    In an action to recover damages for personal injuries it appeared that the plaintiff rode upon a bicycle down a steep farm driveway upon a State highway which he intended to cross, and was there struck by the defendant’s automobile, which was driven at a negligent rate of-, speed. Near the entrance to the highway the view from the driveway was obscured, but at a point on the driveway about 100 feet from the road there was á view of the highway for 308 feet. The plaintiff testified that he looked ' when at this point and did not see the automobile. He had two milk pails -suspended on the handle of his bicycle, and knew that the road was much used by automobiles. Several of the plaintiff’s witnesses testified that the automobile sounded two warning signals, but the plaintiff denied having heard them. '
    Held, that a finding that plaintiff was free from contributory negligence . was against the weight of evidence.
    ' Appeal by the defendant, James S. Whitman, from a judgment of-the Supreme Court in f avoir of the plaintiff, entered in the office of the clerk of the county of Orange on the 27th day of December, 1910, upon the verdict of a jury for $2,750, and also from an order entered in said clerk’s office on the 30th day of December, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      Edward J. Redington [William L. Kiefer and Amos H. Stephens with him on the brief], for the appellant.
    A. H. F. Seeger [H. W. Chadeayne with him on the brief], for the respondent.
   Carr, J.:

„ The plaintiff has recovered a verdict for $2,750 for personal injuries resulting from a collision between himself and the defendant’s motor car on a country highway in Orange county. The defendant appeals from the judgment. There was ample evidence from which the jury might infer negligence on the part of the defendant. The motor car was being driven at such a high rate of speed that, after running down the plaintiff, it jumped a stone wall about five feet high and then kept on across a field of clover for thirty feet before it was brought to a stop.

The chief point of attack on the judgment is the claim that the plaintiff was guilty of contributory negligence. When he was struck he was on a bicycle. He had come into the highway from a driveway on an adjoining farm, where he was employed as a servant. This driveway had a sharp descent towards the highway, the grade being six feet to the hundred. He testified that as he descended the driveway he could look out into the roadway at a certain point and see whether it was clear or not, but that near the entrance to the highway there was a clump of shrubs and trees which would obscure his vision one way when he reached that point. The point on the driveway at which an observation could be made was about 100 feet from the highway. He testified that he made an observation there, and, seeing the roadway clear, he rode down the descending path out into the roadway and was there struck by the defendant’s automobile, which he had not seen before. According to the plaintiff’s proofs the highway there was on a grade, and an auto coming from the south, as did this auto, could not be seen if it was more than 308 feet away. This highway was a State road and. much used by autos. The plaintiff was a licensed chauffeur and familiar with the use of some kinds of motor cars. The defendant claims that, as the plaintiff knew that the highway was much used by autos and that because of the grade in the highway oncoming vehicles could not he seen more than 308 feet away, it was contributory negligence for him to ride out into the highway on his bicycle without taking some observations at the point of his entry into the highway. There is scant, if any, proof that the plaintiff looked either way when he entered upon the highway. He swears that he did look when he was 10.0 feet away from the highway. It could have taken but a few seconds to traverse this space on a bicycle on a descending path, and but a few seconds more to get out ’ into the center of the highway. At the same time, it could have taken but a little over ten seconds for an auto going twenty miles an hour to traverse the distance of 308 feet from the point at which it would first come into the view of the plaintiff had he looked as he attempted to cross the highway. Before he entered the highway, and while descending the path, he was seen by the driver of the auto. A warning signal was then given by the oncoming car. ■ The plaintiff paid no attention to it, if he heard it. As the plaintiff was crossing the highway the driver of the car attempted- to avoid him, and swerved his vehicle, but in vain. When the driver of the motor car saw the plaintiff coming down the path on the bicycle he did not reduce the speed of his car, but took it for granted that he had done enough when he “tooted” the horn. The mere giving of' the warning signal was not the full measure of his duty Under, such circumstances, for he was bound to anticipate that if. the plaintiff did not see or hear the auto, there was a likelihood of danger, But did the plaintiff exercise reasonable care on his part in view of all the circumstances ? He started to ride down a descent, which grew steeper as he neared the highway, thus necessarily increasing his speed. He had suspended on the handle bar of his bicycle two milking, pails, thus necessarily hampering to some extent his control of the bicycle. The only place at which he made any observation as to the highway was about 100 feet away. A bicycle coming down grade would necessarily cover the remaining distance in a few seconds. He knew the highway was used frequently by motor cars. He intended to cross this' highway to the portion of the farm on the other side. He testified that he had made the observation when he started down the driveway on the bicycle “because there are vehicles coming along that road [the highway] sometimes at a high rate of speed that a man is to look out for.” He knew tha/t such vehicles could not be seen by him, if coming from the south, until they had come up a high grade and reached an eminence only 308 feet away, and that thereafter there would be a descending grade. Assuming that such vehicles were going at a rate of but twenty miles an hour, the distance from the eminence to the driveway entrance, 308 feet, would be covered in a trifle over ten seconds of time. Under such, circumstances, was it reasonable care on his part to go right on, with an incumbered bicycle, across the road, Without looking as he entered upon the road ?

The plaintiff produces several witnesses who, while they saw the actual collision, did not see all the happenings which caused it, and they testify that they heard. the auto give two sharp warning signals with its horn. Tet the plaintiff, according to his own testimony, neither saw nor heard the vehicle nor its hórn. The defendant gave proof that when the plaintiff came out on the highway he was looking in the direction of defendant’s car; that his bicycle was “ wobbling ” under him; that he made some motion with his head in the nature of a signal; that the auto horn was blown and the machine was swerved to avoid him, but that in his uncertainty of movement it was impossible to escape collision with him. The plaintiff was asked to refute this testimony by a denial thereof, but he would go no further on this point than to say that he did not remember sufficiently these circumstances to deny them. All his other testimony shows no lapse of memory about the circumstances of the accident. While the question of his freedom from contributory negligence was, in this case, for the jury to decide, yet he had the burden of proof, from which no jury has a power of exemption. It seems to us that the clear weight of evidence was against him on this point.

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

Jenks, P. J., Thomas and Woodward, JJ., concurred; Burr, J., concurred in result upon the ground that plaintiff was guilty of contributory negligence as matter of law.

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