
    Jennie Schwarzbaum, as Administratrix, etc., of Moritz Schwarzbaum, Deceased, Appellant, v. The Third Avenue Railroad Company, Respondent.
    
      Negligence —evidence of—injury to one crossing a street railroad on a dark rainy night ■—failure to give notice of the approach of a car.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, caused by the defendant’s alleged negligence, it appeared that when the intestate and his wife, who were walking at about ten o’clock on a, very dark rainy evening, reached the.southwest corner of a street running north and south, on which the defendant maintained a double-track railroad, they heard the ringing of the bell on a south-bound ear. The intestate’s wife testified that after looking “up and down” to see if other cars were approaching they proceeded to cross the street, the intestate being a little in advance; that when he reached the easterly rail of the easterly track he -was struck by a north-hound car, which, according to the testimony of his wife, “ came up just' like lightning,” and which, she did not see until it was very close to her.
    
      Held, that it could not he said as matter of law that the intestate was guilty of contributory negligence:
    That the fact that the intestate’s wife testified that she saw hut one south-bound car, while two other witnesses testified that there, were two south-hound cars, did not justify the trial court in assuming that the intestate did not exercise due care in looking for cars approaching; from the north or south.
    
      It seems, that the failure to sound a gong or give some notice of the approach of a car; moving at ordinary speed towards a street crossing, is evidence from which negligence may be inferred.
    Van Brunt, P. J.; and Rumsey, J., dissented.
    
      Appeal by the plaintiff, Jennie Schwarzbaum, as administratrix etc., of Moritz Schwarzbaum, deceased, 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 27th day of December, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the New York Tidal Term.
    
      Samuel Greenbaum, for the appellant.
    
      Eugene Treadwell, for the respondent.
   O'Brien, J.:

This action is founded upon the allegation that in consequence of the negligence of the defendant’s servants engaged in operating one of its street cars, the plaintiff’s intestate sustained injuries resulting in his death. On the trial, at the close of the plaintiff’s proofs, the complaint was dismissed, the court ruling that the decedent did not exercise ordinary care and caution ” when the accident occurred. The learned trial justice in commenting on the evidence remarked that it was impossible to come to any other conclusion.” ' Hence the plaintiff was nonsuited on the specific ground that, as matter of law, her intestate was clearly chargeable with contributory negligence.

Notwithstanding the strong conviction and emphatic utterance of the learned trial justice, if we apply to the proof as it appears in the record the inflexible rule that upon a motion to dismiss a complaint .the evidence must be considered in the aspect most favorable to the maintenance of the action and that a plaintiff is entitled to all inferences that naturally and legitimately follow from such a consideration, we are compelled to hold that it does not appear conclusively that the plaintiff’s intestate failed to exercise care, discretion and caution under the circumstances attendant upon the accident from which he suffered injury. It is not conclusively shown that he did anything he as a prudent man should not have done or that he omitted to do anything he should have done to prevent the occurrence. Indeed if the testimony of Mrs. Schwarzbaum, even as modified by that of the other witnesses for the plaintiff, is to be believed, a jury might well have found that the decedent did all that a prudent person could or should have done before and at the time of the occurrence out of which the action arises. Our view of the evidence on this subject differs altogether from that of the trial justice, which of itself is sufficient to indicate that the question of contributory -negligence should' not have been clisposed of as one of law but should have been left to the jury.

The accident happened at about ten o’clock on a very dark February night. Heavy rain was falling, Mr. Schwarzbaum (the intestate) and his wife were walking on the southerly sidewalk of One Hundred and Eleventh street in the city of New York. They reached the southwest corner of Third avenue when they heard the ringing of the bell of a car moving, southward; that' is, on the westerly track of the defendant’s road. Then both Mr. and Mrs. Schwarzbaum (as she swears) looked “up and down” to see if other cars were approaching, after which they proceeded to cross, Mr. Schwarzbaum being a little in advance of his wife. When the former got as far as the easterly rail of the easterly track, he was struck by-a car moving northward, which -car Mrs. Schwarzbaum did not see until it was very close to her. Her statement is that “the car came up just like lightning.” Her testimony shows that both she and her husband exercised due care in attempting to cross the tracks, but two other witnesses, Policeman Dodd and Mr. Frank,, deposed to an additional circumstance from which the trial justice inferred that the intestate could not have looked with care for cars or vehicles approaching either from the north or the south. The witnesses named state that' there were two ■ cars moving southward and that Mr. and Mrs. Schwarzbaum crossed after the first car had passed by. Mrs. Schwarzbaum swears that she saw but one, Because she did not see this second car, which was some thirty feet, in the rear of that behind which she passed, the trial justice assumed it to be. conclusive that she did not look at all — and that, had she looked she must of necessity have seen the north-bound car. That assumption is not justified. Dodd from his position may have seen two cars going south but the Sehwarzbanms from theirs and by reason of the south-bound car obstructing their view may have been prevented from' seeing the north-bound car. Frank did not see the second south-bound car until after the first had passed. What these witnesses saw does not necessarily prove that Mr. and Mrs. Schwarzbaum were careless or did not look for a car coming northward. Dodd, standing on the northwest corner of One Hundred and Eleventh street and Third avenue, saw a north-hound car, but it is not probable that his account of what he saw can be entirely accurate. The position of Mr. and Mrs. Sehwarzbaum when the southbound car passed them, so far as the evidence shows, was at the southwest corner. Dodd says that when he first saw the northbound car, it was six feet below or south of the crossing and that was just as the south-bound car passed the plaintiff and her husband. If that were so, then this north-bound car could not have moved six feet while one of these old people was traversing the distance between the westerly side of Third avenue and the easterly rail of the easterly track of the defendant’s road—yet both Dodd and Frank say that car was moving at a medium ” rate, while Mrs. Sehwarzbaum says it was going like lightning,” neither of which words convey any definite idea of its actual speed.

The evidence does not show indisputably that the decedent was careless or imprudent. His conduct and all the circumstances of the occurrence should have been passed upon by the jury.

There was evidence of negligence. The failure to sound a gong or bell or gRe some notice of the approach of a car moving even at ordinary speed and near a street crossing was under the circumstances some evidence from which negligence could he inferred.

The judgment must be reversed and a new trial ordered, with costs to abide the event.

Patterson and Hatch, JJ., concurred ; Van Brunt, P. J., and Rumsey, J., dissented.

Judgment reversed, new trial ordered, costs to appellant to abide event.  