
    Henry Reens, Resp’t, v. The Mail and Express Publishing Company, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed November 5, 1894.)
    
    1. Negligence—Contributory.
    The duty to look both ways before crossing a street is not imposed, as $ matter of law, upon the party crossing.
    2. Same.
    The question of fact whether an act does, or does not, constitute contributory negligence, depends upon the circumstances of the particular case.
    3. Same.
    The only material issue upon the question of the drinking of the injured pariy, is as to his condition at the time of the accident.
    
      4. Same—Ownership.
    The evidence was held sufficient to take the question of defendant’s ownership of the wagon, and of its liability under the rule of respondeat superior to the jury.
    5. Trial—Evidence.
    A party has not the right to give immaterial evidence because his adversary has done so before him.
    Appeal from a judgment entered upon a verdict and from an order denying a motion for a new trial.
    Action for personal injuries occasioned by negligence»
    
      William Irwin, for app’lt; Gardozo & Nathan (Edgar J. Nathan, of counsel), for resp’t.
   Bischoee, J.

The plaintiff alighted from a street car and sought to reach the sidewalk. When in the act of crossing the street from the track to the curb he was struck by a wagon in the control of defendants’ servant and sustained injuries for which damages are here claimed.

Appellants’ argument for a reversal on the facts appears to proceed upon the mistaken theory that, as between plaintiff and the defendants’ driver, the sole duty of care in avoiding the accident in question rested upon the former when attempting to cross the street.

The fact that plaintiff looked up and down the street, when beside the car after alighting, or, as he testified, .“ on both sides of the car,” and did not see the wagon which, when he started to cross, came upon him at a great rate of speed, does not by any means suffice to impute contributory negligence as a matter of law. It is true that in the case of a person crossing a railway track, negligence is predicable of that person’s fáilure to observe an approaching train when in plain sight, it being the legal duty of the individual, in such a case, to look both ways before attempting to cross, Burke v. N. Y. C. & H. R. R. R. Co., 57 St. Rep. 7; 73 Hun, 32, but a broad distinction is to be noted between these cases and such a one as the present, .for the constantly impending danger, where the crossing of- a railway track is attempted, is an essential element which is lacking in the case of a wayfarer crossing the street, Moebus v. Hermann, 108 N. Y. 349; 13 St. Rep. 648, and it was therefore held in the above case that the duty to look both ways before crossing a street was’ not imposed as a matter of law upon the party crossing.

The case of Hamilton v. Third A. R. R. Co., 56 St. Rep. 397, cited by appellant, does not apply to this action, for here there was no element of a close calculation, plaintiff not having seen the wagon approaching, and thus having assumed no voluntary hazard. The question of fact whether or not an act constitutes contributory negligence depends upon the circumstances of the particular case, and there was sufficient evidence in this case to call for determination by the jury upon the point in question. Plaintiff and defendants’ driver had equal rights in the street and each could rely upon the observance by the other of the reciprocal obligations to avoid an accident which the law imposes. McManus v. Woolverton, 47 St. Rep. 107; Anselment v. Daniell, 4 Misc. R. 144; 53 St. Rep. 133. The jury could, therefore, properly find that there was no contributory negligence, had it been satisfied that plaintiff had merely failed to anticipate a neglect of this duty upon the part of defendants’ servant, Anselment v. Daniell, supra, which finding is not to be disturbed upon the evidence, although the jury might perhaps have also drawn contrary inferences from the facts testified to. Schwartz v. Wechler, 49 St. Rep. 145.

The fact that defendant failed to deny that the witness Eeagan, the driver of the wagon causing the injury, was employed by the corporation, taken with this witness’ testimony that he was employed by the “Mail and Express” for the purpose of delivering newspapers, together with the fact that the wagon in' question bore the name of the “Mail and Express,” furnished sufficient evidence to take the question of defendants’ ownership of the wagon, and of its liability under the rule respondeat superior, to the jury. Tuomey v. O'Reilly, etc. Co., 3 Misc. R. 30; aff’d, court of appeals June 4, 1894; Wylde v. Northern R. Co., 53 N. Y. 156; Seaman v. Koehler, 122 N. Y. 646; 33 St. Rep. 729; Doherty v. Lord, 59 St. Rep. 445.

Defendant urges that the exclusion of certain evidence sought by it to be elicited with regard to plaintiff’s habits, was error, but there is found to be no force in the contention.

The only material issue upon the question of plaintiff’s drinking was as to his condition at the time of the accident. What his habits were was immaterial to that issue, and the fact that plaintiff had testified in his own behalf that it was not his habit to get drunk, did not render the defendants’ evidence admissible as of right. No objection was taken to the admission of the plaintiff’s testimony in this regard, and a party has not the right to give immaterial evidence because his adversary has done so before him. People v. Dowling, 84 N. Y. 486; Starin v. Kelly, 47 Supr. Ct, 288; aff’d, 88 N.Y. 418. In view of the evidence as to the extent and effect of the injury here sustained, we are unwilling to hold that the award of $5,100 damages is to be regarded as excessive.

Judgment affirmed, with costs.

All concur.  