
    Wells v. Brooklyn City R. Co.
    
      (Supreme Court, General Term, Second Department.
    
    December 10,1890.)
    1. Horse and Street Railroads—Negligence—Persons on Track.
    A man, 61 years of age, and a little deaf, was fatally injured by being struck by the horses of a street-car while he was crossing the tracks. Before he started to cross, he was observed to look both ways. The car was then 50 feet away, but was going faster than usual, and did not slacken its speed until the man was struck. The driver did not see him until the horses were within six feet of him, when the accident could not be prevented. Held, in an action for damages for his death, that there was sufficient evidence of negligence on the driver’s part to be submitted to the jury.
    2. Same—Contributory Negligence.
    An attempt to pass in front of a street-car 50 feet away is not, as matter of law, negligence, contributing to the injury of one struck by the horses of the car while so crossing the tracks; especially where it appears that the driver of the car was negligent in going faster than usual, and did not see him, although in full view, nor slacken speed, until too late to prevent the injury.
    Appeal from circuit court, Kings county.
    Action by Altha M. Wells, as administratrix of James Wells, deceased, against the Brooklyn City Railroad Company, for damages for causing the death of plaintiff’s intestate. From a judgment for defendant entered on the dismissal of the complaint at the trial, plaintiff appeals.
    Argued before Barnard, P. J., and Dykhan and Pratt, JJ.
    
      Payne, McGuire & Low, for appellant. Morris & Whitehouse, for respondent.
   Barnard, P. J.

There was sufficient evidence produced upon the part of the plaintiff to go to the jury. The accident happened on the 27th of November, 1888, between 6 and 7 o’clock in the evening. The plaintiff was 61 years of age, and attempted to pass over Flushing avenue in front of the defendant’s street-car, and was killed. When he started from the corner of Throop and Flushing avenues, and when he started to cross, he was observed to look both ways, and start after this observation. The car was then 50 feet away. The deceased got across the first and second track, and partly across the third track, when he was struck by the car horses, and thrown under the wheels of the car, and fatally injured, although the car did not pass over him. The negligence of the defendant consists in this: The car was going faster than usual, and did not slack up its speed until the man was struck, although in full view of the driver of the car. The witness Schnidler thought he would have time to cross safely with the high rate of speed which continued until the accident, when the driver put on brakes to stop the car. The driver did not see the deceased until he got within 12 feet of him, and the horses were within 6 feet of him. It was then too late to save the man who was crossing, as it takes about 8 feet to stop the car. The deceased was a little deaf. The driver was bound to be watchful, especially in a crowded city, so as not to injure persons crossing the street. Moebus v. Herrmann, 108 N. Y. 349, 15 N. E. Rep. 415. It does not appear that he did so if he could see 50 feet ahead of him, and did see a man crossing the street, and kept up a rapid rate of speed until the horses were within 6 feet of the person crossing, and when the accident could not be prevented. The contributory negligence of the deceased was a question for the jury. It was not negligence on his part to attempt to pass in front of a car 50 feet away, as matter of law. The neglect of the defendant being found, it will go far towards acquitting the deceased of neglect. He probably assumed that the rate of speed was less than it was, or that the driver would slightly slacken the speed. McClain v. Railroad Co., 116 N. Y. 459, 22 N. E. Rep. 1062. The order dismissing complaint and the judgment therein should be reversed, and a new trial granted, costs to abide event.  