
    Guilford Dudley, as Ancillary Administrator, etc., of Semantha V. Dudley, Deceased, Respondent, v. Harry Raymond, Appellant.
    
      Negligence-^motor vehicle — death by, automobile.
    
    Appeal from a judgment entered! in the Hew York county clerk’s office on the 31st day of February, 1911, upon a verdict of $1,350, and also from an order entered on the 17th day of February, 1911, denying a motion for a new trial in an action to recover damages for death claimed to be caused by the negligence of the defendant, his servant or agent.
   Clarke, J.:

On "Wednesday afternoon, December 3, 1908, at about five o’clock, the decedent, a widow, sixty-one years of age, having attended a matinee performance, was proceeding down Broadway, and while crossing Forty-fifth street had reached to within eight or ten feet of the curb on the southerly side of the street. An automobile belonging to the defendant, and driven by his chauffeur, on its way from the garage to defendant’s house on East Forty-fifth street, turned from Broadway into Forty-fifth street. The, fender, just forward of the front wheel on the south side, hit the decedent at about the knee. She fell in a sitting position and then her head was snapped back and hit the asphalt pavement. She received a concussion of the brain and died in a few hours in the hospital to which she had been removed. The wheel did not run over her but her dress was caught under the the so that the brakes had to be released and the machine pushed back to enable her to be lifted. It is an established fact that the car was stopped within four or five inches. The overwhelming evidence is that the chauffeur was sounding his horn and proceeding slowly around the corner. That he had the machine under control is demonstrated by its immediate stop. Even if we eliminate from consideration the testimony of the chauffeur, “If seems to me that the woman was going over the street and when she got to a certain distance and got in front of a cab or wagon or whatever it is there, she wheeled right around quick and the minute she wheeled around and she was coming back toward the car I put the brakes on,” I think it clear that the finding that the chauffeur was negligent was against the evidence. He was proceeding slowly; he was sounding his horn; he had his car under complete control; he saw the decedent and acted instantly. The- street was crowded at the time with people pouring out of the theatres in the vicinity and two ladies crossed immediately in front of the car. One of them testified: “The horn blew a couple of. times *. * * because it drew my attention and I walked across in front of it; it was coming slowly and I didn’t have to hurry.” This judgment cannot be sustained upon the evidence unless we are prepared to hold that when an automobile hits a pedestrian the happening of the accident itself is proof of the negligence of the driver thereof. We do not understand that to be the law. The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event. McLaughlin, Scott and Dow-ling, JJ., concurred; Ingraham, P. J., dissented, judgment and order reversed, new trial ordered, costs to appellant to abide event.  