
    Charles Lofsten, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    
      _Negligence—injury to a pedestrian at a street crossing from a street car—failure of the person injured to look after leaving the sidewalk.
    
    
      ■ A person desiring to cross the tracks of a street railway company at a street intersection, before leaving the curbstone, which was sixteen feet four and "a half inches from the center of the street railway tracks, looked both ways for approaching cars and saw one, approaching slowly, which was then fifty feet distant. He did not look again, but walked rapidly from the curbstone towards the car track, where he was struck and injured by the car which he had previously seen. He was in easy view of the motorman during the time that he was passing from the curb to the track.
    
      Meld, that the failure of the injured person to look for the car after leaving the curbstone did not constitute contributory negligence as a matter of law, but that the question whether it constituted contributory negligence was a question of fact to be determined by a jury.
    "Woodward and Jenks, JJ., dissented.
    Appeal by the defendant^ The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of May, 1903, upon the verdict óf a jury for $100, and also-from an order entered in ¡said clerk’s office on the 12th day of May,, 1903, denying the defendant’s motion for a- new trial made upon, the minutes.
    
      I. R. Oela/nd [H. F. Ives and George D. Yeomans with him on the brief], for the appellant.
    
      Benjamin F. Norris [James "G. Gropseg with him on the brief], for the respondent.
   Hirsohbebg, P. J.:

The plaintiff has obtained a small verdict for personal injuries sustained in a collision with one of the defendant’s street cars at the intersection of Hoyt and Fulton streets in the borough of Brooklyn.. He left his home on the east side of Hoyt street at about twenty minutes past seven on the morning of - the accident, and when he reached Fulton street looked for cars in both directions before attempting to cross. He says that he saw the car which struck him coming slowly from the west, and that when'he left the curbstone to go across it was fifty feet distant. . The curb is sixteen feet four and a half inches distant from the center of, the first set of car-tracks, the one on which the car was coming. He did not' look again, but walking rapidly had just reached the space between the rails when he was admonished of danger by the motor man’s shout, but too late to avoid the accident.' On the other hand, the motorman testified that the plaintiff walked rapidly into the car, stepping; from behind a moving wagon as he did so, and that he, the motorman, did not see the plaintiff until he was within three feet of the track. The only point presented on the appeal in behalf of the appellant is that there should have been a nonsuit on the ground that it was contributory negligence as matter of law for the plaintiff to proceed over the crosswalk without looking for the car a second time. ' '

The preponderance of evidence does not support the assertion that the plaintiff approached the track from behind a wagon. The jury was justified in reaching the conclusion that the plaintiff was in easy view of the motorrnan from the curb to the track, and I can find no authoritative decision that a failure under the circumstances to look a second time constitutes negligence as matter of law upon the part of a pedestrian upon a city crosswalk. The learned trial justice charged the jury that they might find the plaintiff guilty of negligence in walking from the sidewalk to the track without looking again for the car, and that if they so found there ■could he no recovery, and such charge was certainly as favorable to the defendant as the law required. In Wendell v. N. Y. C. & H. R. R. R. Co. (91 N. Y. 420, 429) the court said: “ The rules of ■conduct which should govern the approach of travelers to crossings ■over street railways or in the track of vehicles whose rate of progress is under the control of their drivers are necessarily quite different from those applicable to the- crossing of the track of steam • railroads whose trains traverse vast distances, carrying great burdens and moving with a momentum necessarily destructive to bodies with which they come in contact. It is within the knowledge and ■comprehension of the most immature that these agencies cannot be arrested in time to obviate danger to those coming in their way, and, therefore, a greater degree of care is imposed upon those who have •occasion to use their tracks.” To the same effect is Moebus v. Herrmann (108 N. Y. 349), where it was said (p. 354) that “ The duty imposed upon a wayfarer at the crossing of a street by the track of a railroad to look both ways, does not as matter of law attach to such person when about to cross from one side to the •other of a city street. The degree of caution he must exercise will be affected by the situation and surrounding circumstances.” (See, also, Smith v. Metropolitan Street R. Co., 7 App. Div. 253, and Dunican v. Union Railway Co., 39 id. 497.) In the latter case the court said (p. 500) : “ The plaintiff was not called upon as matter of law to watch and listen for the approach of this car using the highway as he would have been called upon to watch and listen at a country crossing of a railroad company going upon its own tracks, where it had an exclusive right, but it was proper for him to take into consideration the duty of the defendant in running along the highway, and to suppose that that duty would be performed. "* * * He had the right to cross the track, even though the car was approaching, and even though the fact of his crossing required the car to slacken its speed (Kennedy v. Third Ave. R. R. Co., 31 App. Div. 30); and whether he had sufficient opportunity to observe the approach of the car, or used due diligence in his effort to avoid: it after he became aware of its situation, was clearly a matter for -the jury to determine.”

In Sesselmann v. Metropolitan Street R. Co. (65 App. Div. 484) the plaintiff attempted to cross in front of a car which, while he was-, on the sidewalk, he had seen approaching the crossing at a distance-of from twenty to fifty feet. He did not appear to have looked again before he was struck, yet a nonsuit was held to have been, erroneous. Mr. Justice Woodwaed said (p. 486): “ It is not contributory negligence as matter of law for a person to attempt to. cross a highway at a street intersection in a' populous -city from, twenty to fifty feet in front of an advancing car, even if he has-seen it approaching. The duty rests upon the street railway company to-have its cars in control at these points that the equal rights of others, may be protected, and the people using the highways for lawful purposes have a right to rely in some measure upon the discharge of' this duty.”

In Hicks v. Nassau Electric R. R. Co. (47 App. Div. 479) this-, court held'in effect that it was for the jury to determine whether it was -negligence on the part of a plaintiff to cross a street railroad track without looking a second time for a rapidly-approaching c4r which had been seen by the pedestrian when on the sidewalk. Other-cases of similar import might be cited. The case of Lynch v. Third Ave. R. R. Co. (88 App. Div. 604), relied on by the appellant,, cannot be regarded as in conflict. The opinion of Mr. Justice■McLaughliu did not receive the concurrence of a majority of the court, and the cases cited therein are readily distinguishable.

In- the case at bar the motorman testified that when he saw the plaintiff he stopped the car within a distance of five or six feet. If this be true the car was under complete control at the time the plaintiff endeavored to cross the track, and the accident would not. have happened had the motorman seen him in time to avoid it. In Legare v. Union Railway Co. (61 App. Div. 202) it was held that, it is not contributory negligence as matter of law for a person te attempt to cross the track of a street railroad in the city of Hew York when an electric car is at such a distance that the motorman,. if attending to his business and operating the car in a careful and prudent manner, could prevent- it from running down such person. The court said (p. 204): “ Whether or not a person crossing a:, street in the city of N"ew York, occupied as most of them are by cars propelled by electricity or cable, and often running at a high rate of speed, is guilty of contributory negligence where there is evidence,' which would justify a finding that the defendant was negligent must-usually be for the jury, for in a case where a car can be controlled, so as to avoid running down a person crossing the track,- it cannot, be said that it was negligence, as a matter of law, for the person- to-attempt to cross the track. In many of the streets, during the busy-portion of the day, these cars are running constantly within a few feet of each other, and if a person about to cross the track is to wait-until no car is in sight, the track would- be unpassable except at the, risk of the pedestrian being guilty of contributory negligence. The, right of a railroad company to use the public streets is conditioned upon the right of the public to also use them in the ordinary way,, and no railroad company has the right to so block the streets that, the public are excluded from crossing them except at the risk of being run over. It cannot, therefore, be contributory negligence,, as a matter of law, for a person to start to cross a track when the car is at such a distance that the motorman can prevent its running; him down, if attending to his business and operating the car in a. careful and prudent manner.”

The judgment and order should be affirmed.

All concurred, except Woodward and «Tenes, JJ., dissenting.

Judgment and order affirmed, with costs.  