
    Barbara Doller, as Administratrix, etc., of John Doller, Deceased, Respondent, v. The Union Railway Company of New York City, Appellant.
    
      Gontnbutwy negligence in crossing a street railroad track.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate caused by the" alleged negligence of the defendant, it appeared that the deceased was crossing Third avenue in New York city on a clear, evening, at a point where it is lighted by electric lights, going diagonally towards the northwest, and was only a few feet ahead of a car having- an. electric headlight, which was also proceeding rapidly north; that the deceased, who had his face turned away from the car, and was not crossing at a crosswalk, was running and was struck almost instantly upon reaching the rail of the track nearest him.
    Held, that the deceased was guilty of contributory negligence as a matter of law.
    ■JtmrsEY, J., dissented.
    Appeal by the defendant, The Unión Railway Company of Hew York City, from a judgment of the Supreme Oourt in favor of the plaintiff, entered, in the office of the clerk of the county of Hew York on the 14th day of February, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of February, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    
      Henry L. Scheuerman, for the appellant.
    
      Jonathan C. Ross, for the respondent.
   Ingraham, J.:

The plaintiff’s intestate, twenty-eight years old, who was employed as a peddler, was, on the 20th day of December, 1893,' as he was Grossing the track of the defendant railroad, about half-past ten at night, run over by one of the defendant’s cars and killed, and this appeal is from a judgment entered upon a verdict of the jury in favor of the plaintiff for the damages sustained by his next óf kin in consequence of his death. The plaintiff’s intestate, shortly after •ten^ left his employer in a saloon on Third avenue, went home to his own house, which was some distance from Third avenue in Drove street, saw his mother there, said he had some horses to see and went out. He told his employer to wait in the saloon until he returned. To reach the saloon where he left Flegler, his employer, he had to cross Third avenue, crossing.the track of the defendant’s Toad from east to west. Third avenue at this spot is lighted at night by electric lights. The road of the defendant before it reached this point .was a straight road for about half a mile and the cars' of the road' at night carried headlights.

The only witness, called for the plaintiff, who saw the accident was one Workman. At the time .of the accident he was upon the west side of Third avenue, a short distance above Drove street, Avhere the plaintiff was struck by the defendant’s car. He swore that the deceased was-in the middle of Drove street, crossing Third avenue, on the easterly track of the defendant’s road. He was coming from the east towards the northwest, going diagonally toward the north,' and the car on the track going north struck him. The witness says that the car at the time he first saw the deceased was only a few feet from him, “ fifteen or twenty feet probably; ” that the car was going very rapidly; the deceased stepped upon the track, and, the next thing the witness saw, the car hit him and he was thrown under the car. The night was clear and cold. The witness testified that when he first saw the deceased he was on the east rail of the east track, or had one foot on the track and the other off the rail; that he either had both feet over the east rail or had one over the east rail and the other one on the other side; that his face was turned toward the witness, away from the approaching car, and that he was about opposite the elevated railroad pillar, or a little south of it. The car that struck the deceased was also on the south side of the pillar going north.

There appears to have been no trucks or other obstruction in the street, and nothing to prevent the deceased from seeing the approaching car, the street being lighted by an electric light in the immediate neighborhood and the car carrying a headlight. The deceased being struck by the car while upon the east rail of the track, must have been struck immediately after the attempt to cross the track, and as he was between the car and the elevated railroad pillar there was no obstacle to prevent his seeing the approaching car; and there is not the slightest evidence to show that had he exercised any care in looking for the approaching car, or waited until the car passed, the accident would have happened.

The questions of the negligence of the defendant and the contributory negligence of the plaintiff in this case are closely interwoven. The only evidence, except the fact of the. accident itself, to justify a finding of negligence on the part of the defendant, was that as to the speed of the car. In this locality and at this time of night there, is nothing to show that running a car at the speed which any of the witnesses here have testified to, was itself negligence. The deceased was crossing the street, not at the crosswalk, but in the middle of the street, and the motonnan had no particular reason to look for him at that, particular place. There was no evidence to show that the motorman was not attending to his business and did not stop the car as soon as he could after the deceased had placed himself upon the track. It is not pretended that the motorman saw the deceased upon the track, at a sufficient distance to have enabled him to stop the car, in such a position that he would have been in jured by the car proceeding. The evidence is clear that the deceased was struck almost immediately after placing his foot upon the east rail of the east track, and we hardly think the' evidence was subicient to justify a finding .of the jury that the defendant was negligent.

We think, however, that the evidence fails to show the absence •of contributory negligence, but that the. evidence did show that the deceased was guilty of contributory negligence ; and this is made very clear by a consideration of the undisputed facts testified to by the defendant’s witnesses. It was testified to that the •deceased was crossing the street diagonally on a run, and as he stepped upon the track the car was near to him, Strnck and threw him against the pillar and then under the car, and this was not denied by any witnesses. The fact of the deceased running across the street at the time he was struck, and thus running directly in front of the car as it approached, would explain his being struck while upon the easterly rail of the easterly track just after he placed his foot upon the track. But it is impossible to escape the conelusion that this deceased, without exercising any care, without looking for the approach of the car which he could not have failed to see if he had looked, stepped upon this track immediately in front of the car as it was approaching, and that his death was the result, not of the negligence of the defendant, but of his -own negligence :in placing himself in such ’a position of danger.

We think that the complaint should have been dismissed, and the judgment is, therefore, reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., Williams and Patterson, JJ., concurred; Rumsey, J., dissented.

Rumsey, J. (dissenting):

This action was submitted to the jury in a charge which was unexceptionable, and upon a motion for a new trial the learned judge who heard the case and saw the witnesses concluded that the verdict should stand. While his judgment is not conclusive upon us, yet it undoubtedly is to have weight upon the motion for a new trial. Upon the facts shown I think that the evidence presented a question for the jury, both as to the contributory negligence of the plaintiff’s intestate and the negligence of the defendant.

It is quite impossible to lay down any hard and fast rule as to what constitutes either negligence or contributory negligence in these cases. The highway upon which the defendant’s car ran was for the use of foot passengers quite as much as for the vehicles of the defendant. Foot passengers are entitled not only to walk upon the sidewalk, but to cross over the streets at any places where their business or their inclination calls them. The only duty which is imposed upon them is to' use reasonable care in such crossing. In their attempt to do that they have the right to assume that street cars, whether propelled by horses or by mechanical power, will run at such rates of speed and will give such warning as will enable foot passengers to keep out of. their way. Whether it is negligence in any given case to cross the track of a street railway depends not only upon the manner in which the car is propelled, but upon the rate of speed; the freedom of the roadway from obstacles; the nearness of the car, and the opportunity which the foot passenger has to observe its approach.

The rule which is applied in the case of steam railroads cannot be applied in such cases as these. Steam railroads are laid upon tracks wherein foot passengers have no right at all. If they have occasion to cross those tracks at a highway, they are bound to use the very greatest care, because they know that steam railroads are not expected to stop or slacken their speed at such places, and foot passengers are expected, under all circumstances, to keep off the crossing. In such cases it has heen held that, if one. attempts to cross in front of a moving train, knowing that it is approaching, and relying upon his ability to keep out of its way, he does so at his peril. But no such rule applies in the case of surface street railroads. Those roads are laid upon the highway, up and down, and across which foot passengers have the right to go. Passengers must cross in front of moving cars, and they must judge in any given case, whether it is safe to attempt it, and contributory negligence cannot be predicated of the mere fact of an attempt to cross in front of a moving car. Otherwise one could never cross the track of a street railroad where cars ran at a rapid rate of speed and close together.

It will not do of course to say, that in all cases the question of contributory negligence is for the jury, but it is exceedingly difficult to conceive of a case in which that is not likely to be the fact. This, in my judgment, is a case where the question should have been passed upon by the jury, and as it was properly submitted, the verdict should stand.

I think the judgment and order should be affirmed.

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