
    Rose Drusky, as Administratrix, etc., of Meyer Drusky, Deceased, Appellant, v. Schenectady Railway Company, Respondent.
    Third Department,
    November 11, 1914.
    Street railroad — negligence ■— death of deaf mute struck by car at street intersection— evidence —change in rules requiring dead stop — contributory negligence — duty of deaf mute to exercise care in passing over crossing.
    In an action to recover for the death of a deaf mute, who was struck by one of defendant’s cars while attempting to cross the tracks at an intersection of streets, it appeared that the decedent was thoroughly familiar with the location, and that there was nothing to obstruct his view for a distance of several hundred feet in either direction. Evidence as to the operation of the car, in violation of the rules of the defendant and of an ordinance of the city, and of a change of rules so as not to require the customary dead stop at the street intersection, examined, and held, that it was error to grant a nonsuit upon the ground of contributory negligence, and that the judgment should be reversed and a new trial granted.
    Although it was not, under all circumstances, negligence for the deaf mute to walk unattended about city streets, his infirmity imposed upon him the duty of being more vigilant in the use of his eyes for his safety than would be required of a person possessing good hearing.
    Appeal by the plaintiff, Rose Drusky, as administratrix, etc., from an amended judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 1st day of July, 1914, upon a dismissal of the complaint by direction of the court at the close of the case.
    The motion to dismiss was made at the close of the plaintiff’s case and decision thereon was reserved until the close of the whole case when the motion was renewed and granted.
    
      Frank Cooper, for the appellant.
    
      Daniel Naylon, Jr., for the respondent.
   Lyon, J.:

Plaintiff’s intestate, who was a deaf mute, was struck by one of defendant’s cars while attempting to cross State street at or near its intersection with Ferry street in the . city of Schenectady, and sustained injuries which resulted in his death two days later. In this action, brought to recover damages on account of his death, the court at the close of the evidence granted a nonsuit upon the ground of contributory negligence of the decedent. The correctness of that ruling is the sole question involved upon this appeal.

State street, which is the main business street of the city, runs nearly east and west, and upon it defendant had for a long time maintained two lines of tracks, operating its cars by electricity. Ferry street, which is a narrow street, runs practically north and south, crossing State street at nearly right angles in a populous part of the city. For upwards of ten years the shop of plaintiff’s intestate, who was a tailor, and who during the latter part of his life conducted a news stand in connection with that business, had been situated on Ferry street within one block of the crossing of State and Ferry streets, while his place of residence had been in that immediate vicinity for a longer time. In connection with the news business, decedent had been accustomed almost daily, at about six o’clock in the morning, to go along Ferry street to State street and obtain newspapers, which had been left for him near the crossing, with which to supply the trade of his news stand. Other business also took him to this locality, and at the time he was injured he was thoroughly familiar with the location. On the morning of March 6, 1914, plaintiff’s intestate passed along the east side of Ferry street to State street, and while crossing State street was struck by one of defendant’s east-bound cars and sustained fatal injuries. The morning was cool and clear. The track on State street was nearly straight. There were no vehicles to obstruct the view, and plaintiff’s intestate, whose eyesight may be assumed to have been good, could have readily seen a car approaching in either direction for several hundred feet. An eye witness, called by the plaintiff, testified that decedent upon reaching the north curb of State street looked both east and west along the track, then stepped from the curb and started to cross State street, following the path which had been shoveled out for the easterly crosswalk, and that he was not seen to look again, although the witness says he might have looked, until after he had crossed the west-bound track, and was in the center of the east-bound track, a distance of about twenty-five feet from the north curb, when suddenly glancing to the west he saw the car approaching, and starting quickly, slipped upon the ice and' ran diagonally to the east about ten feet towards the south rail where he was- struck and run over, and dragged forty or fifty feet, when the car was stopped and decedent’s body taken from under it. The testimony of the motorman was that the decedent was about fifty feet east of the crossing when he was struck by the car, and that seeing it approaching he ran towards it, and that decedent’s body was carried less than six or seven feet. The car was a single-truck car, empty, and operated by a motorman and conductor who were not regular but extra men, and was known as the shop car which left the barn at about six A. m. The speed of the car was a subject of broad divergence of opinion. The motorman placed the speed at six miles per hour as it proceeded towards Ferry street and at four miles per hour at the time it struck decedent. Testimony introduced by the plaintiff was to the effect that the speed of the car up to the time it reached Ferry street was from eighteen to twenty-two miles per hour, and that it had lessened hut slightly at the time it struck decedent. An ordinance of the city of Schenectady forbade the running of trolley cars at exceeding twelve miles per hour, and a rule of the defendant required east-bound cars to he run at low speed to Ferry street. It may be noted as hearing upon the question of speed that the car left the barn one minute late, as the conductor and motorman testified, and that some distance east of Ferry street the two tracks merged into one, over which, in each direction, cars of other roads or divisions also passed, and that unless the shop car reached the single track on time, the right of way would he given to other cars, and the shop car would be compelled to await a clear track before proceeding. While the rail was dry there there was more or less of an accumulation of ice and snow each side of the rails and between the tracks and over the crossing, requiring decedent to give attention and use some care as he proceeded. The weight of testimony was that the gong was sounded as the car approached decedent. The motorman and conductor testified that the motorman also shouted to the decedent. Whether the testimony of plaintiff’s witnesses as to the rate of speed of the car, corroborated by the distance to which it was claimed the body was carried, be accepted, or the testimony of the motorman as to the low rate of speed just before decedent was struck, coupled with the testimony as to the few feet within which the car could have been brought to a full stop by the use of the emergency brake, be accepted, the jury would have been fully warranted in finding the defendant guilty of negligence in recklessly operating its car in violation of its own rules and an ordinance of the city, thereby causing the death of plaintiff’s intestate.

As hearing on the question of contributory negligence, it appears that immediately preceding February 8, 1914, for five or six years, as the general manager of defendant testified, and for fifteen years, as a witness whose place of business had been at the comer of State and Ferry streets testified, the defendant had brought its east-bound cars to a dead stop at the crossing of State and Ferry streets, which was a stopping required by the defendant’s rules regardless of whether a passenger was to be received or discharged at that point; and that on that day the defendant permanently discontinued making such stop and substituted a stop upon the near side of the street upon signal. No public notice of the change was given by the defendant otherwise than by removing from a wire of the company a small red sign which hung near the crossing for the guidance of motormen, indicating that a stop should be made. However, notices of the changes were posted in the car barn and division offices, and two of the daily newspapers of the city of Schenectady published as matter of local news articles relating to changes by defendant in the manner of operating its cars upon State street. In an issue of January thirtieth, under the heading of “ Near side stops on State street,” it was stated that “All east bound cars, those passing up State Street, will stop, under the new rules, at the near side of Ferry Street * * For east bound cars, the stops at the far side of Ferry Street * * * will be eliminated. ” The same newspaper contained in its issue of February • 6, 1914, under the heading “Near side stops on State Street effective at noon Sunday, ” the following: “ The dead stop, east bound, at Ferry street will be abandoned and cars will b& operated slowly, as at present, in passing Fire Station No. 2 and the slow speed continued until Ferry street is passed.” The other newspaper in its issue of February 6, 1914, under the heading of “New car stops much in favor,” said: “There will be no dead stop at Ferry street for cars coming up the street, but they will be operated at low speed from a point below Fire Station No. 2 to Ferry Street.” Such point was about 200 feet west of Ferry street.

While the record is devoid of direct evidence upon the subject, it may fairly be presumed from decedent’s familiarity with the Ferry street crossing, and the long time during which the practice of making the stop had existed, that decedent knew of the dead stop made by east-bound cars, and that in attempting to cross State street he not only relied upon the motorman exercising reasonable care in operating the car, but also relied upon the dead stop being made. There is nothing in the evidence indicating that decedent knew of the change made by defendant in its rules, and the abandonment of the dead stop at Ferry street, or sufficient to charge him with knowledge. The testimony is that decedent seldom read the newspapers excepting when some member of the family called his attention to some particular article, and that witnesses who knew of the defendant’s practice of making a dead stop at Ferry street had no information of the change of the rule. Even had the decedent read the newspaper articles, he would have been informed that while east-bound cars no longer made the usual stop at the Ferry street crossing, such cars would be operated at low speed from a point below the fire station to Ferry street. While plaintiff’s intestate was deaf, it was not under ah circumstances negligence for him to walk unattended about the streets, although doubtless his infirmity imposed upon him the corresponding duty of exercising greater care for his safety in passing over the street crossing, and demanded that he be more vigilant in the use of his eyes, than would have been required had he been possessed of good hearing.

. The rules of law relating to the granting of nonsuits in negligence actions are well settled. On the trial of any action to recover damages for causing death, the contributory negligence of the person killed shall be a defense to be pleaded and proven by the defendant. (Code Civ. Proc. § 841b, as added by Laws of 1913, chap. 228.)

It is only where it clearly appears from the circumstances, or is proved by uncontroverted evidence that the party injured has, by his own acts or neglect, contributed to the injury, that the court can determine that question. The cases are exceptional where it can be held that contributory negligence was so conclusively established that nothing was left either of inference or of fact to be determined by a jury.” (Kettle v. Turl, 162 N. Y. 255; Fogarty v. Pittsburg Contracting Co., 152 App. Div. 409.)

Undoubtedly, if the evidence permitted the jury to find the intestate free from contributory negligence on any reasonable theory, it would be the duty of the court to permit it so to do. ” (Hogan v. N. Y. C. & H. R. R. R. Co., 208 N. Y. 445, 450.)

After all it was simply a question as to whether plaintiff’s intestate, -under all the circumstances and conditions, exercised the care and caution of a reasonably prudent person in attempting to cross the street; and in determining the correctness of the court’s decision in granting the nonsuit, the plaintiff is entitled to the most favorable inferences deducible from the evidence, and all contested facts are to be treated as established in his favor. (Higgins v. Eagleton, 155 N. Y. 466; Waldron v. Fargo, 170 id. 130; Sundheimer v. City of New York, 176 id. 495; Koehler v. New York Steam Co., 183 id. 1.)

We think the plaintiff was entitled to have the case submitted to the jury upon the issues both as to the negligence of the defendant and the negligence of plaintiff’s intestate, and that granting the nonsuit was error." The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.  