
    Bartholomew McCabe, Respondent, v. International Railway Company and Crosstown Street Railway Company of Buffalo, Appellants.
    Fourth Department,
    March 8, 1911.
    Railroad — injury to pedestrian crossing tracks—contributory negligence.
    A pedestrian crossing a street, who, being able to see a rapidly-approaching street car, stepped in front of it when not more than five feet away, so that she was struck while midway between the rails, is guilty of contributory negligence which bars a recovery.
    Robson, J., dissentéd.
    
      Appeal by the defendants, the International Railway Company and another, from a judgment of the County Court of Erie county in favor of the plaintiff, entered in the office of the clerk of said county on the 10th day of March, 1910, upon the verdict of a jury foi $1,028.50, and also from an order entered in said clerk’s office on the same day denying the defendants’ motion for a new trial made upon the minutes.
    Norton, Penney c& Sears and Dana L. Spring, for the appellants.
    
      Charles B. Moulthrop and Clinton T. Horton, for the respondent.
   Williams, J.:

The judgment and order should be reversed and a new trial granted, with costs to the appellants to abide event.

The action was for negligence. A street car ran against plaintiff’s wife at a street crossing and the plaintiff seeks to recover for loss of services by reason of her injuries, and for care and medical attendance.

The only question here involved is contributory negligence.

The street car was running along West avenue very rapidly (thirty miles an hour) towards the crossing at Maryland street. The plaintiff and his wife saw the ear coming all the way down the street and yet went on the track in front of it when it was so close that the plaintiff barely got over and his wife was struck when midway between the rails of the track. It was broad daylight. They were old people but had full possession of their faculties of sight and hearing.

The court charged the jury if they found the wife stepped upon the track when the car was not more than five feet away from her, or if she was struck just as she was stepping upon the track, plaintiff was not entitled to recover. This became the law of the case, and considering the speed of the car and it is claimed that the wife was struck when midway between the two rails, the car must have been within five feet of her when she stepped ’on the track, and plaintiff was not, therefore, entitled to recover. Whether that be so or not the wife was clearly guilty of contributory negligence in going upon the track in front of the car, when it was so close to her that it struck her when she was midway between the rails.

Of course" the defendant was negligent in approaching the cross- . ing at so great speed, hut the wife saw the car all the way down the street or could have seen it if she had looked. She knew it was coming and was close to her and she was guilty of contributory negligence in going upon the track in front of it.

There is no need to refer to or discuss other cases. This case is clearly one for reversal.

All concurred, except Robson, J., who dissented; Spring, J., not sitting.

Judgment and order reversed and new trial ordered, with costs to appellants to abide event.  