
    (17 Misc. Rep. 154.)
    McQUADE v. METROPOLITAN ST. RY. CO.
    (Supreme Court, Appellate Term, First Department.
    May 25, 1896.)
    1. Street Railroads—Injury to Person Crossing Track.
    In an action for injuries received while attempting to cross a streetcar track, plaintiff testified that the street was <¿lear as far as she could see, that she did not see any car coming, and the first thing she knew she was knocked down. The accident occurred about 9 o’clock, on a cold night, and some of the witnesses stated that plaintiff’s head was covered to protect her from the weather. The gripman and the conductor stated that she was struck about the middle of the car, and plaintiff's testimony as to what portion of the car struck her was very indefinite. Held, that plaintiff did not show negligence on the part of defendant, or prove that she was free from contributory negligence.
    2. Same—Duty to Exercise Care.
    Failure to sound gong as a car approaches a crossing does not relieve persons crossing the street from the exercise of proper care.
    
      Appeal from Seventh district court.
    Action by Annie McQuade against the Metropolitan Street Railway Company for personal injuries. There was a judgment in favor ■ of plaintiff, and defendant appeals.
    Reversed.
    Argued before DALY, P. J., and McADAM and BISGHOFF, JJ.
    H. A. Robinson and J. T. Little, Jr., for appellant.
    Joseph N. Folwell, for respondent.
   McADAM, J.

The action is to recover for personal injuries sustained by the plaintiff on January 4, 1896, while walking in an easterly direction on the southerly cross walk at Lexington avenue and Fifty-Second street, in this city. She had crossed the westerly track of the defendant’s cable road, was struck by one of its cars going north on the easterly track, and thrown down upon her knees, receiving the injuries of which she complains.

The plaintiff's testimony was to the effect that the street was perfectly clear as far as she could see, that she did not see any car coming, and the first thing she knew she was struck and knocked down. The accident occurred at about 9 p. m. It was a cold night, and some of the witnesses swear that the plaintiff was carrying a parcel, and that she was “bundled up”; meaning that her head was ■covered to protect her from the weather,—a circumstance which might have interfered with her sense of hearing. According to the testimony of the gripman and of the conductor, she struck about the middle of the car. The gripman positively testifies that the platform of the car had passed her, and this is highly probable, judging from the nature of her injuries and the fact that she fell towards the westerly track. So that, instead of the car running into the plaintiff, she unconsciously ran into the car. When interrogated particularly as to what portion of the car struck her, she testified, “The front of the car”; and, when asked what part of the front, said, “I could not tell, because I was struck before I knew it.” The latter statement is undoubtedly the correct one.

This testimony fails to establish either negligence on the part of the defendant, or freedom from fault on the part of the plaintiff. The front of the car having passed her, it was the plaintiff’s duty to stop on the cross walk until the car passed. The gripman bad the right to assume that she would exercise this care, because ordinary prudence commands it. It is not an uncommon thing for a pedestrian, seeing a car approach, to advance to the middle of the street, and cross as soon as the car has passed. Indeed, it is difficult, at times, to cross certain of our crowded thoroughfares in any •other way, owing to the presence of many passing vehicles in the roadway.

The plaintiff's counsel lays stress upon the fact that his client did not hear the gripman’s gong. There is no statute requiring the ringing of a. gong; yet, if the exercise of proper care in the management of the car in a particular instance requires some warning to be given, it is negligence not to give it. Byrne v. Railroad Co., 104 N. Y. 362, 10 N. E. 539. But the failure to sound the gong did not relieve the plaintiff from the exercise of proper care in crossing the tracks. Krauss v. Railroad Co., 69 Hun, 482, 23 N. Y. Supp. 432; Cullen v. Canal Co., 113 N. Y. 667, 21 N. E. 716.

In Omslaer v. Traction Co., 168 Pa. St. at page 521, 32 Atl. 50, the court said:

“The rule, ‘Stop, look, and listen,’ before attempting to cross the tracks of a steam railroad, is inflexible, and nonobservance is negligence per se. So much of this rule as requires a person, about to cross the tracks of a steam railroad, to ‘look and listen’ to discover whether a train is approaching, is applicable to the crossing of a street railway operated by cable or electricity.”

In answer to the plaintiff’s claim that she looked and did not see the car approach, the language of the court in Burke v. Railroad Co., 73 Hun, at page 35, 25 N. Y. Supp. 1009, is significantly applicable, for it is there said:

“If a person looks, she is supposed to look for the purpose of seeing; and, if an object is in plain sight, and she apparently looks, but does not see it, it is manifest she does not do what she appears to do, and has not complied with the rules of law.”

To the same effect, see Flanagan v. Railway, 163 Pa St. at page 102, 29 Atl. 743.

In order to recover, the plaintiff was bound to prove affirmatively, not only that the injuries were caused by the negligence of the defendant, but that she did not in any manner contribute thereto. Mahon v. Burns, 13 Misc. Rep. 19, 34 N. Y. Supp. 91; Weston v. City of Troy, 139 N. Y. 282, 34 N. E. 780. She utterly failed to establish these essentials to a recovery, and for this reason the judgment appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.  