
    Mary McVicker, as Executrix of James McVicker, Deceased, Respondent, v. Adrian H. Joline and Douglas Robinson, as Receivers of Metropolitan Street Railway Company, Appellants.
    First Department,
    January 22, 1914.
    Railroad—negligence — collision between street car and vehicle, causing death — contributory negligence — failure to look for approaching car — charge.
    Action against a street railroad company to recover for injuries causing death. It appeared that the decedent drove Ms wagon diagonally across a street in the city of New York, and the veMcle was struck by the defendant’s car. There was no evidence that the decedent looked to discover whether a car was approaching, or that he made any effort to mcrease the speed of the veMcle before it was struck. The only precaution he took was to hold out his hand as he was going upon the track. On all the evidence, held, that a verdict based on the finding that he was free from contributory negligence was agamst the weight of evidence.
    Under the circumstances, it was error to charge in substance that the decedent had reasonable ground to suppose he might cross M safety, and that it was the duty of the ear driver to afford him a reasonable opportunity to do so. This, because the decedent had failed to acquaint himself with the situation.
    So, too, in view of positive- evidence that the decedent did not look to discover whether a car was approaching, it was error to charge that the jury might assume that he did look.
    Appeal by the defendant, Douglas Robinson, he having been continued as sole receiver of Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of February, 1913, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes; also from-the amended judgment herein entered in the office of the clerk of the county of New York on the 29th day of March, 1913.
    
      Bayard H. Ames of counsel [Walter Henry Wood with him on the brief], Masten & Nichols, attorneys, for the appellants.
    
      Daniel J. Early, for the respondent.
   Clarke, J. :

Plaintiff’s decedent, fifty-eight years old, was in the milk business. On July 24, 1911, at six-thirty A. M., he and his son John, a young man of eighteen, were engaged in the delivery of milk on Fourteenth street between Eighth and Ninth avenues. James McVicker was sitting in the milk wagon in front of the rectory of St. Bernard’s Church on the south side of Fourteenth street, about the middle of said block. The horse was headed to the west, towards Ninth avenue. Young McVicker had served a customer a few doors from the rectory. He testified that as he came out of the areaway he did not see anything in sight; he walked down to the wagon, put the basket in, looked up Fourteenth street and said to his father: It’s all right, go ahead.” The wagon was driven towards the west and then turned northwest at an angle of about forty-five degrees, behind an east-bound car, across the west-bound track. It had almost crossed the track when a west-bound car hit the left hind wheel and upset the wagon, James McVicker being killed as a result of the collision. The car was stopped within five feet. The father did not look up the street toward Eighth avenue at all from the time he started from the south curb until the collision. The boy says that he looked when he heard the bell when the car was ten or twelve feet from the wagon; that he saw the motorman doing his best to stop the car, but that' he could not do it. There is no evidence that McVicker made any effort to increase the speed of his horse.

This accident took place in the middle of the block and was due to the fact that the decedent undertook to drive across the track in front of an approaching car without taking any precautions for his own safety, further than to hold out his hand as he was going on the track. A finding that he was free from contributory negligence is unsupported by and against the weight of the evidence.

The court at plaintiff’s request charged: “ Where the driver of a wagon, desiring to cross a street car track, approaches the track at such a distance from the approaching car that he has reasonable ground to suppose that he may cross in safety, it is the duty of the car driver to afford him a reasonable opportunity to dó so, although the car driver may be obliged to check the speed of his car, or to stop it, and the driver of the wagon may properly assume that the car driver will perform his duty.” This proposition in slightly different form, but with substantial similarity, was charged three times. To this the defendant ■ excepted.

The plaintiff states that said charge was proper and that it was taken from the opinion in Lawson v. Metropolitan Street Railway Co. (40 App. Div. 307).

The paragraph, extracted bodily from that opinion, was not a charge to the jury, but was incidental to the discussion as applied to' the facts of that case'. It was an erroneous instruction as applied to the facts of this case, because it implied that the person attempting to cross the street before an approaching car had a reasonable ground to suppose that he would be able to cross in safety. As the evidence establishes that from the time the milk wagon left the south curb, first driving west and then swinging in .■ a northwesterly direction across the street, neither the decedent nor his son had looked to see whether any car was approaching from the east until the boy looked out as he said.,' just before it hit us, when I looked around and heard the bell,” the decedent could not have had a reasonable ground to suppose that he could cross in safety because he had refrained from acquainting himself with the situation. A supposition without knowledge or observation could not be based on a reasonable ground.

In Baxter v. Auburn & Syracuse Electric R. R. Co. (190 N. Y. 439) Judge Gray, writing the unanimous opinion of the court, said: “ I think that the evidence permitted the jury to infer that the car was moving at an excessive rate of speed and we may assume that the motorman was negligent in operating his car. The deceased, however, does not appear to have looked again in the direction from which a car might be expected after he started with his horses to cross the track". * "x" * There was an interval of time and he had to proceed, at least, thirty-five feet from the tree to the point of crossing, and short as was the distance tó cover, he had no right to' act in exclusive reliance upon the fact that no car had been in sight when he stood under the tree. A street surface railway track may not be as much a place of danger as is a steam railway track; but, nevertheless, its presence in the street admonishes a person to be reasonably vigilant when attempting to cross. It behooved the deceased, before going upon it, to use his senses and to look and to listen. He was to decide if it was reasonably prudent at the moment to cross it. The omission to look would only be excusable in a situation where that precaution was shown by the circumstances to have been an unavailing one. However excessive the speed of the car, it is plain that, had the deceased looked again, after leaving the sidewalk, he would have seen it and might have awaited its passage. ' It was culpable negligence, as matter of law, in my opinion, for him to drive across the car track, between street crossings as he was, without looking to see if a car was approaching at a point where it could have been seen for several hundred feet. " That was the evidence and I think it showed an inexcusable neglect on the part of the deceased, which contributed directly to his injury, as a proximate cause thereof.”

The defendant asked the court to charge that if they foun the plaintiff’s intestate failed to look for a west-hound car from the time he left the curb until he entered upon the track in front of the car the verdict must be for the defendant, which was refused, and exception taken. He also asked the court to charge that it is the uncontradicted testimony and the evidence in the case that he did not look. The court: “I refuse to charge that, because they assume that he did look. There is some evidence here that the street was open and free, that it was a fine day, and from his failure to see the car, they might assume that he did look and could not see it.” Defendant’s counsel: “I except to the refusal to charge and also to the modification.”

Under the Baxter Case (supra) the defendant was entitled to have the request charged.

In view of the positive evidence that the decedent did not look the court’s instruction to the jury that they might assume that he did look was prejudicial error.

The judgment and order appealed from should be reversed' and a new trial ordered, with costs to the appellant to abide the event.

Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.  