
    William P. Ayres, Respondent, v. The Forty-second Street, Manhattanville & St. Nicholas Avenue Railway Co., Appellant.
    (Supreme Court, Appellate Term,
    June, 1907.)
    Street railways — Operation — Actions — Sufficiency of evidence —Contributory negligence.
    Where, in an action for personal injuries received by being struck by a street car, plaintiff testifies that before leaving the sidewalk he looked up and down the street but no car was in sight upon either track; that he proceeded across the street, diagonally, but did not look again until he had crossed one track and was approaching the other, and that then he saw the car, five feet away, which struck him, a judgment in his favor will be reversed and a new trial granted.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, tenth district, borough of Manhattan, rendered in favor of the plaintiff.
    
      William E. Weaver, for appellant.
    Cornelius J. Earley, for respondent.
   Fitzgerald, J.

Plaintiff was injured by being struck by defendant’s north bound car at a point which, as nearly as it can be located from the testimony given on his behalf, was about ten feet north of the northerly crossing at Forty-sixth street and Tenth avenue. The accident happened about 1 o’clock on the afternoon of Sunday, March 4, 1906. Plaintiff is seventy-two years of age and his evidence indicates a somewhat confused condition of mind as to the details of the occurrence. It is, however, fairly established that he proceeded to cross Tenth avenue diagonally, starting from the southwest corner of Forty-sixth street and going in a northeasterly direction: He testified that before leaving the sidewalk he looked up and down the avenue and that no car was in sight upon either of defendant’s tracks; that he did not again look until after he had crossed the westerly or south bound track and was approaching the easterly or north bound track, and that he then saw a car coming north about five feet from him. Whether he was struck after he stepped upon the north bound track or by some projection from the car while still in the space between the tracks is not satisfactorily shown. It was held by this court in Solomon v. New York City R. Co., 50 Misc. Rep. 557, that it was contributory negligence for plaintiff not to have looked for the approach of cars after leaving the curb and before attempting to cross the tracks. Plaintiff in-that case appears to have been going directly across, while in the case under consideration the distance traversed- by plaintiff without looking must have been greater, as he was pursuing a diagonal course.

Gildersleeve and Goff, JJ., concur.

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