
    Mary E. Baker, Respondent, v. William J. Close and Others, Appellants.
    Third Department,
    March 9, 1910.
    Motor vehicle—negligence---injury to pedestrian—contributory negligence.
    Where, in an action to recover for personal injuries, it appears that the plaintiff having assisted friends to board a street car, started to cross the street; that she looked up and down when crossing the first and second car tracks, and saw nothing, and was struck by an automobile when she had nearly reached the curb, and the chauffeur testifies that plaintiff ran from behind the street car in front of his machine, and that he did what he could to avoid her, but was unable to do so, while disinterested witnesses testify that the automobile was going from twenty to thirty miles an hour, and made no effort to-avoid the plaintiS, who was walking,, and that the impact threw her ten or fifteen feet, and it appears that it was windy with a flurry of snow, both the negligence of the chauffeur and the contributory negligence of the plaintiff are for the jury.
    Under the circumstances, it cannot be said tjiat had the plaintiff looked she would have seen the automobile, so as to be guilty of contributory negligence as a matter of law.
    Cocheare and Sewell, JJ., dissented.
    Appeal by the defendants, William. J. Close and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the,office of the clerk of the county of Schenectady on the 21st day of October, 1909, upon the verdict of a mry for $3,000, reduced by direction of the court to $1,200.
    
      William Dewey Boucks, for the appellants.
    
      Edgar T. Brackett, for the respondent.
   Houghton, J.:

The action is to recover damages claimed to have been caused by the -negligence of defendants’ servant in running -plaintiff down upon .the highway.

The plaintiff was oh the north side of State street in the city of Schenectady assisting some friends to board a street car. Kelton avenue comes to State street on the south side, but does not cross it at the point in question, which is a regular stopping place for street cars. After the car which plaintiff’s friends had boarded had proceeded, plaintiff started to cross State street to Kelton avenue, There were two car tracks, one west-bound and one east-bound, between her and the far side of the street to which she was going, and she testifies that, she looked up and down the street as she crossed the first track, and again as ■ she crossed the second track, and that she.did not see the automobile coming from the west, and that she was struck when she had nearly reached- the -north curb. The chauffeur testified that the plaintiff ran from behind -the Car which her friends had boarded directly in front of his machine and within a few feet, and that he did what he could to avoid her by

putting on the brakes and. turning sharply to the left, but was unable to prevent her being struck by the right-hand side headlight of the machine. The day was windy, and there is testimony that there was a flurry of snow. The plaintiff proved by disinterested witnesses that the machine was going from twenty to thirty miles an hour, and that the chauffeur made no effort to turn his machine away from plaintiff, and that she was walking instead of running, and that the impact threw her from ten to fifteen feet.

The appellants insist that the plaintiff was guilty of negligence as matter of law, because if she had looked she would have seen the machine approaching her, and that her testimony that she looked and did not see it is incredible and unworthy of belief.

Whether the chauffeur was guilty of negligence in the speed and manner of the running of (he car was clearly a question of fact for the jury. We are of the opinion that the question of plaintiff’s , contributory negligence was also one for the jury. The plaintiff was in a position calculated to distract her attention. She was obliged to cross two street railway tracks and to observe whether or not street cars from either direction were approaching. Manifestly the automobile was being driven at a high rate of speed and would cover a considerable distance within a short period. It was a blustering day, and under the circumstances the jury may well have "found that she used reasonable care in endeavoring to observe if the road was clear. If the testimony of some of the witnesses of the plaintiff is credited the chauffeur used no care whatever and did not attempt to slacken his speed or swerve his machine for the purpose of avoiding a collision with the plaintiff and practically raí? her down in the highway.

The situation is not like that presented in Perez v. Sandrowitz (180 N. Y. 397), upon which the appellants rely. In that case the person injured was crossing between streets and there were no circumstances from which inference might be drawn that he used any precaution whatever in observing whether or not the team was approaching. In the present case the plaintiff testifies that she did look, and we do not think it can be said under the circumstances that if she had looked she must necessarily have seen the approaching automobile in time to avoid it and, therefore, was guilty of negligence as matter of law in not observing it.

The verdict as reduced by the trial court is reasonable. In our opinion there was a fair question of fact for the jury upon both branches of the case, and the judgment must be affirmed, with costs.

All concurred, except Cochrane and Sewell, ,.JJ., dissenting on the ground of contributory negligence of plaintiff. .

Judgment and order affirmed, with costs.  