
    William Boentgen, Appellant, v. New York and Harlem Railroad Company, Respondent.
    
      Negligence —a person struck ~by a car, while standing on a crossing between two lines of tracks —proximate cause of the accident.
    
    A person is not guilty of contributory negligence as matter of law, who, while .standing.on a crosswalk in the space between two lines of tracks of a street railroad waiting to board a south-bound car then at the other crossing of the , street in which he is standing, is struck by a north-bound car which, at the time he took this position, he saw standing a block away, and which he' did not look at again (the, space between the cars as they passed each other being two feet four and one-half inches), where the driver of the north-bound car, , although he could see the situation, failed to obey the rule of the company requiring him, under such circumstances, to reduce the speed of his car or stop, but urged his horses on.
    
      Quam, whether the whnt of care of the driver or the exposed position of the. person injured was the proximate 'cause of the accident. • - • '
    Appeal by the plaintiff, William Boentgen, 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 21st day of March,' 1898, upon the dismissal'of his complaint by direction -of :the court after a trial at the New York Trial Term,-and also from an order entered in said clerk’s office on the 29th day of March,'1898, denying the plaintiff’s motion for a new trial made upon the minutes.
    This appeal was transferred from the first department to the second department.
    
      Ben L. Fairchild, for the appellant.
    
      Payson Merrill, for the respondent.
   Goodrich, P. J.:

• The plaintiff sues to recover the damages sustained by him in consequence of being run down' by a car. of the defendant, which was. -operating a line of horse cars on Madison avenue in the borough of Manhattan. The answer denies any negligence on the .part of the defendant, and alleges contributory negligence on the part of the plaintiff. The court at Trial Term, at the close of the plaintiff’s evidence, dismissed the complaint, the plaintiff excepted and moved for a hew trial, the motion was denied, and from the judgment and order entered thereon the plaintiff appeals.- '■

The plaintiff and one Foster had been standing on the southwesterly corner of Madison avenue and Seventy-seventh street and went out on the lower crosswalk to take a south-bound car. Foster stood on the westerly side of the track and boarded the front platform. The plaintiff crossed the track and stood on the crosswalk on the strip between the two lines of tracks, and while he was standing there, "waiting to mount the rear platform of the caz-, another car-bound north passed, knocking him down and seriously injuring hizn. He téstified that before he took his position on the crosswalk he saw the noz-th-bound car stationary at Seventy-sixth street, and that he signaled the south-bound car which was then at the upper crosswalk of Seventy-seventh street-; that he took his position facing the south-bound car, and. did not look back again to observe the northbound car, and while so standing was struck by the latter and knocked insensible. It appeared that the platforms of the cars were open on each side to receive and discharge passengers, and that the space between the sides of the ears as they passed each other was two feet four and one-half inches. ' •

It cannot be affirmed as matter of law, on these facts, that the plaintiff was guilty of eontz-ibutoz-y negligence. That was a question of fact to be determined, among other things, from the distance between the two cars when the plaintiff took his position, and the speed of both caz-s. It would have been imprudent for the plaintiff to go between the tz-acks if the cai-s were in such proxiznity that they would pass each other before he could reasonably expect to be able to board the south-bound caz-, but it was a question of fact whether there was such proximity, and whether the act of the plaintiff in taking his position was the act of a reasonably prudent, man.

But even assuming that the plaintiff took an exposed .position, it does not follow that he is necessarily precluded from recovery, provided the negligence of the defendant was the ' proximate cause 'of the accident. The plaintiff was standing on a crosswalk. He had the right to assuzne that the north-bound 'car, in approaching the crosswalk, would be -under control. " The instruction of the defendant to its drivers is in evidezice-. The driver of the down car says : My instructions were' to slow up or stop when I approached a car that is near or on the crosswalk taking on or receiving passengers.” The south-bound" car and-the plaintiff were in plain view -of the driver of the north-bound car, and he could have seen that the plaintiff was- on the crosswalk, waiting to take the down car; and he was, therefore, hound to obey the rule of the company and reduce speed or stop. There is evidence tending to show that, instead of doing this, he was' urging his horses without regard to the position of the plaintiff, and passed the place where the latter was standing, without checking speed. His speed was such that he did not, and we assume could not, when the accident occurred, stop his car until it had reached the north crossing of Seventy-seventh street. In-other words, he did not check his speed or stop the car as he easily could have done before he reached the crosswalk, and this raised a question of fact whether the driver was exercising reasonable care, and whether this and not the position of the plaintiff was the proximate cause of the accident.

In Murphy v. Orr (96 N. Y. 14, 16) the court said: “ Whoever drivés horses along the streets of a city is bound to anticipate that travelers on foot may be at the crossing, and must take reasonable care not to injure them. He is negligent whenever he fails to look out for them, or when he sees, and does not, so far as is in his power, avoid them. There was evidence in this case fairly leading to either of these conclusions in regard to the driver’s conduct. The day was clear and bright, the street was unobstructed, the horses, quietly moving on a walk, were completely under his control, and from his elevated seat he could, as is conceded, ‘ see a block away,’ and c all around, in front and on both sides.’ ”

This court applied the doctrine of Murphy v. Orr (supra) to the facts in Wihnyk v. Second Ave. R. R. Co. (14 App. Div. 515), and held the defendant liable where a person was injured on a crosswalk, although seen by the driver of an approaching car only forty feet away. The court said (p. 516): The accident occurred practically at the crosswalk. At such places, the drivers of vehicles' must anticipate the probable presence of pedestrians, and be on their guard to avoid injuring them.”

We think there was evidence which required the submission of the case to the jury, and that for the refusal to do so the judgment and order should be reversed.

All concurred.

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