
    William O. Brandt, Appellant, v. The New York Railways Company, Respondent.
    (Supreme Court, Appellate Term, First Department,
    April, 1914.)
    Automobiles — action to recover damages for collision with trolley car — contributory negligence — appeal.
    In an action to recover damages to plaintiff’s automobile, 'resulting from its collision with a trolley car operated by defendant, the question whether plaintiff’s attempt to cross the railway track when he saw the trolley car from 150 to 200 feet distant and approaching at the rate of thirty miles an hour was contributory negligence is for the jury, and the dismissal of the complaint is reversible error.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, entered upon a dismissal at the close of the plaintiff’s case.
    Leon Kauffman,- for appellant.
    James L. Quackenbush (A. S. Cole, of counsel), for respondent.
   Lehman, J.

The plaintiff’s automobile was damaged by a collision with a trolley car operated by the defendant. The automobile had been standing on the west side of Broadway, a short distance south of Eleventh street. The collision occurred while the plaintiff was crossing the defendant’s easterly track, in an attempt to turn his automobile to the north on the easterly side of Broadway. The plaintiff had an unobstructed view to the south for a distance of at least 200 feet, yet he did not see the defendant’s north bound car until he was in the middle of the track. At that time the defendant’s car was 150 feet away, going at a speed of thirty miles an hour. The plaintiff did not attempt to pass in front of the car after he saw it, but thought he might avoid a collision if he reversed his automobile. The trial justice dismissed the complaint, holding that this testimony failed to show negligence on the part of the defendant, and did show negligence on the part of the plaintiff.

"While there is no doubt but that the plaintiff failed to look south before he proceeded upon the defendant’s easterly track, he did look north and south before he left the curb, and it is fairly inferable that he looked south again after he halted to let a south bound car pass him, for he says that when he crossed the westerly track the south bound car had already proceeded 100 feet. If he started across the street knowing that no car was in sight, I do not think that as a matter of law he should be held guilty of negligence for proceeding to cross the tracks without again looking for a car, since no car could then be in dangerous proximity, unless it came along at an unusual and excessive rate of speed.

On the other hand, where the testimony shows that the car was proceeding at an unusual rate of speed, even after plaintiff’s automobile was in clear view, negligence in the operation of the car may fairly be inferred.

It follows that the judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.

Bijur, J. (concurring).

Plaintiff’s story is that he started to cross the easterly north bound track on Broadway at a time when he saw defendant’s north bound car from 100 to 150 feet away from him. He also says that the car was running at the rate of thirty miles an hour when it struck him. '

The question whether the attempt to cross the track under those circumstances was an act of contributory negligence is, to say the least, one for the jury.

The judgment dismissing the complaint at the close of plaintiff’s case must, therefore, be reversed and a new trial ordered with costs to appellant to abide the event.

Seabury, J., concurs.

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