
    John Matulewicz, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence-—injury to a pedestrian in the street from being- struck by the overhang of the.J aider of a street car in passing around a curve — right of the motorman to assume that the pedestrian would, draw back to avoid being struck.
    
    In an action brought to recover damages for personal injuries, it appeared that, at six o’clock on a November evening, when the usual lights had been lighted the plaintiff, an adult, was waiting at a curve for one of the defendant’s street cars; that he stood at such a distance from the outer edge of the curve that the entire body of the car passed him without striking him, but that the fender on the rear end of the car struck and injured him. The plaintiff did not testify that he was not ■ aware that the rear of the car was likely'to swing out when rounding the curve.
    
      Held, that the complaint should have been dismissed on the ground that the-plaintiff had failed to prove that he was free from contributory negligence. Semble, that, assuming that the motorman of the car was' bound, in the discharge of his duties, to see the plaintiff as the front of the car passed him, no negligence could he imputed to the railroad company because of the motorman’s failure to warn the plaintiff of the danger of being struck by the rear end of the car;
    
      Semble, that the plaintiff being an adult apparently in full possession of health and vigor, the motorman might rightfully assume that the plaintiff would, if necessary, as the car turned the curve, draw back far enough to avoid being struck.
    Appeal by the defendant, the Metropolitan Street Railway 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 24tli day of November, 1903, upon the verdict' of a jury for $900, and also from.an order entered in said clerk’s office on the 1st day of December, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      Bayard H. Ames [F. Angelo Gaynor and Henry A. Robinson with him on the brief], for the appellant.
    
      John F. Carew [Thomas F. Magner, with him on the brief], for the respondent.
   Willard Bartlett, J.:

The plaintiff, while waiting for one of the defendant’s southbound electric cars to pass, was struck and injured by the coiled fender at the rear end of the car as it turned from'Madison avenue into Forty-second street, in the borough of Manhattan. He was standing far enough from the outer edge of the curve to allow the entire body of the car to pass him without collision, but so near as to come in contact with the rear end of the car as it swung around the corner. The question which the learned trial judge left to the jury was whether the motorman and conductor who had charge of the operation of the car exercised reasonable care to prevent the collision. All of the car except the portion which struck him passed the plaintiff safely. I quote from the charge: The motorman, according to the testimony of the plaintiff, saw him standing in the position in which he did. Did he have a right to assume that he would change his position if he saw that he was too close to the car to avoid coming in contact with the rear end of the car? Was it his duty under those circumstances to give him warning ? Was it the duty of the conductor to observe the proximity of the plaintiff to the car and to give him warning, or give warning to the motorman to slow up in order to prevent a collision ? These are the questions of fact which are to be submitted to you, and you will answer by your verdict whether this motorman and conductor exercised reasonable care under the circumstances to avoid a collision between the car which they were handling and the plaintiff upon the street standing waiting for the car to go by.”

It is contended that negligence on the part of the railroad company can be predicated Upon the facts in this case under the decision in Suse v. Metropolitan Street R. Co. (80 App. Div. 24). I cannot find anything in the record to support the statement of the learned trial court that the motorman saw the plaintiff as the car approached or at any time. It may be assumed, however, that in the discharge of his duties he was bound to see him. Nevertheless it seems to me that under the circumstances, the plaintiff being an adult, apparently in full possession of health and vigor, the motorman might rightfully assume that the plaintiff, if necessary, as the car turned the curve would draw back far enough to avoid being struck. (Hayden v. Fair Haven & W. R. Co., 76 Conn. 355, 364.)

It is true that in the Suse case, above cited, Mr. Justice McLaughlin, speaking for the majority of the court, said that the railroad company, the appellant therein, “ was just as much obligated to prevent & collision with the rear end of the ear as it was with the front end, and if it be true that the motorman’s duties were such that he was required at all times to look in front of the car, then the appellant should have required the conductor or some one on the rear to observe that, and if a collision were about to occur, signal to the motorman to stop,” and although that case, was determined by a divided court, yet the two dissenting, judges concurred in this, view as to the extent of the defendant’s obligation. It is to be observed, however, that the plaintiff in the Suse case was a passenger and the court was discussing the duty of a street railroad company toward a, passenger and not toward a traveler upon the street. In my own opinion, in view of the well-known fact that the rear of a street car in rounding a curve necessarily swings out some little distance from the track on the outer edge, it is extending the obligation of street railroad companies too far to impose upon the conductors of their ears the duty of warning, persons upon the- street against the danger of collision with the rear end after the body of a car has passed in safety.

Even if we assume, however, that a more stringent rule is asserted in Suse v. Metropolitan Street R. Co. (supra), I think that the complaint' in the present case ought to have been dismissed by reason of the plaintiff’s failure to prove the absence of contributory negligence on his part. In Garvey v. Rhode Island Co. (58 Atl. Rep. 456) the plaintiff, according to her complaint, had taken a position on the street where the swing or overhang of the car came in contact with her person and the Supreme Court of Rhode Island held as follows: “Every person who is of sufficient intelligence to be capable of being left alone in the streets must be. presumed to take notice of the obvious fact that the body of a street car, in rounding a curve, must necessarily swing, out-some little distance from the track on the outside of the curve. And for one to place .himself within reach of the swing or overhang of a car while it is in motion is as much a bar to his recovery in an action against the company as though he had negligently placed himself in front of a moving car and been injured thereby.” In Widmer v. West End Street Railway (158 Mass. 49) the, plaintiff, while standing near a street car track waiting for a ear to go by, was struck on, the. right temple by the handle on the rear dasher of the car as it went around a corner; and the Supreme Judicial Court of Massachusetts held that there was no reason why the driver should not drive past the plaintiff, and around the corner, for he had no reason to suppose that she. would come so near the rear of the. car as to be struck when it went by. In Riddle v. Forty-second St., etc., R. Co. (173. N. Y. 327) the Court of Appeals, held the. plaintiff’s, intestate, to have been guilty of contributory negligence, because while working, in a trench at a. point where there was a curve in the tracks he neglected to lean back at a safe distance, as he might have done, but raised himself and brought his face so near to the car as to come in contact, with the step. “ This was his, own act,”' says Judge- Haight, writing for the court, “ and we think it was contributory negligence on his part. He appears’ to have been an intelligent man and as we have seen, was the foreman in charge of the work. He. knew that the trench was at the point where there was a curve in the tracks around which the cars ran into Tenth avenue, and that in rounding the curve the rear of a car would be thrown a greater distance from the track than the side of the car when running upon a straight line.”

' I do not see how the plaintiff in the case at bar can be acquitted of contributory negligence unless we disregard the principle applied in these- decisions. The learned trial judge, in denying the defendant’s motion for a new trial, expressed the opinion that if the plaintiff had been so familiar with the situation at Madison avenue and Forty-second street as to fully appreciate the. risk he was taking,,, he ought to have been nonsuited for his contributory negligence; but he thought the case was properly left to the jury inasmuch as they might imply from the evidence that he was not thus familiar with the locality. I cannot concur in this view. The plaintiff’s own testimony show's, that he was as fully acquainted with all the circumstances and the situation as he would have been if he had visited the place a hundred times. The accident occurred at six o’clock on the evening of November 27,1901. The plaintiff testified that there were lights just as Avere usual every night, and although he stated that he had never been at that placo at night before, tine inference from his testimony is inevitable, from the position of the car Avhen he first saw it and tlie manner of its approach, that the existence of the curve must have been plainly visible to him, and that the accident was due chiefly, if not solely, to his own imprudence in failing to observe the simple and obvious precaution of stepping back so as to avoid the rear end of the approaching car as it swung into Forty-second street. He does not say. or suggest in his testimony that lie was not aware of the fact that the rear of the. car was likely thus to swing out in rounding the curve, and I agree with the Supreme Court of Rhode Island that an adult wayfarer upon the streets, apparently in the full possession of his faculties* is chargeable with knowledge of the danger which he incurs under such circumstances.

For these reasons I am in favor of a reversal of this judgment.

. Hirschberg, P. J., Rich and Miller, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  