
    Annie Gildea, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence—a pedestrian crossing a city street on a dark night, struck by an unlighted car giving no notice of its approach.
    
    In an action to recover damages for personal injuries sustained by the plaintiff in consequence of being struck by one of the defendant’s street cars while attempting to cross Fifty-ninth street, between First and Second avenues, in the city of New York, at about ten o’clock at night, evidence was given tending to show that, as the plaintiff stepped off the curb into the street she saw the car in question apparently standing at Second avenue; that she then próceedéd to cross the street, and that the car, which had no lights upbn it, came up at full speed, without giving any signal of its approach, and struck her before she could cross the track; that, although the locality was dark, the motorman might have seen the plaintiff at a distance of from 50 to 125 feet from where she was struck.
    
      Held, that the questions of the defendant’s negligence and of the plaintiff's freedom from contributory negligence were for the jury.
    Van Brunt, P. J., dissented.
    Appeal by the defendant, the 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 23d day of November, 1900, upon the' verdict of a jury for-$500, and also from an order entered in said clerk’s office on the 3d day of December, 1900, denying the defendant’s motion for a new-trial made upon the minutes.
    
      Charles F. Brown, for the appellant.
    
      Otto II. D-roege, for the respondent.
   Ingraham, J.:

The plaintiff, twenty-three years of age, attempted - to cross the track of the defendant between First and Second avenues on the night of June 30, 1898, between ten and a quarter-past ten o’clock. The plaintiff testified that as she stepped off the curb into the street she looked toward Second avenue and saw a car at Second avenue on Fifty-ninth street; that it looked to her to be standing at Second avenue with a dark light on the top of the car; that after seeing this car she looked toward Third avenue and then proceeded to cross the street. She says, “ and then I looked again, and when I looked again the car was onto me. I seen the car twice before I was struck by it. The first time I saw it near Second avenue, I was outside in front of 227. * * * When I saw it the second time it was still dark; then I went across the street, and when I looked the car was near me. The car at that time was still dark! When I saw it that last time I was on the track, and I didn’t hear no bell nor nothing. When I saw it the last time it was almost on top of one.” She also testified that Fifty-ninth street along in that direction is a very dark street, and that on that night it was dark up towards Second avenue. There was further evidence that as the car came from Second to Third avenue the bell was not rung, and that the car was going fast, with no lights on it, but there was plenty of light for the witnesses to see the plaintiff at from 50 to 125 feet from where she was struck.

I think there was evidence to justify the submission of this case to the jury. The jury could find that the light was sufficient for the motorman to see the plaintiff at a distance of 125 feet; that when she stepped into the street she looked to see if it was safe to cross, and that she saw a car which appeared to her to be stationary at Second avenue; that as she attempted to cross the street the car came up with full speed and struck her before she could cross the track ; that the motorman could have seen the plaintiff crossing the track, and that, either from inattention or for some other reason, he failed to stop the car, so as to enable her. to cross in safety. This would be evidence from which the jury could find negligence.

Upon the question of contributory negligence, I think there was sufficient to justify the jury in finding that the plaintiff saw the car at Second avenue; that it appeared to be stationary, and that she then attempted to cross the street. I do not think that it was contributory negligence for her, under such conditions, to cross the track.

Upon the whole case, both the defendant’s, negligence and the plaintiff’s contributory negligence were for the jury, and the case was submitted upon a charge to which no objection was taken. I think the judgment should be affirmed, with costs.

Rumsev, Patterson and O’Brien, JJ., concurred; Van Brunt, P. J., dissented.

Judgment affirmed, with costs.  