
    Elizabeth Charters, as Administratrix, etc., of John Charters, Deceased, Appellant, v. Clarence M. Palmer, Respondent.
    First Department,
    May 11, 1906.
    Negligence — street sweeper killed by truck — when defendant negligent , — when deceased free from contributory negligence. i
    An ejnployee of the street cleaning department of the city of New York, while pushing tiis cart diagonally across the-street, was run over and killed by a heavy truck coming from behind and driven at a high rate of speed. It was shown that the driver was looking behind at the time of the accident. 'It did not appear, whether the deceased had looked behind.
    
      
      Reid, that a verdict based on the negligence of the defendant was warranted by the evidence;
    That the deceased was not guilty of contributory negligence as a matter of law, for in cases of death the rule with respect to the evidence required, to show freedom from contributory negligence is not so rigid.
    Appeal by the plaintiff, Elizabeth Charters, as administratrix, etc., of John Charters, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 29th day of November, 1905, • upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case ,upon a trial at the New York Trial Term.
    
      David C. Hirsch for the appellant.
    
      Carl Schurz Petrasch, for the respondent.
   Laughlin, J.:

This is an action under section 1902 et seq. off the Code of Civil Procedure to recover for the death of-John Charters, alleged to have been caused by the negligence of the defendant. The decedent was about fiftyffour years of age, in the possession of all his faculties and in the employ of the street cleaning department of the city of New York as a street sweeper, and had been so empldyedupwards of nine years. He used a can carrier, which is a three-wheeled vehicle, pushed like a baby cart, carrying several' cans for carting away street sweepings, and a large, wide, long-handled broom and a shovel. On the 19th day of January, 1903, he was working on Avenue A, between Sixty-first and Sixty-fourth streets. His hours of labor upon the street were from seven a. m. until four p. m. His pushcart arid implements were kept at the station at the southwest corner of Sixty-fifth street and Third avenue, and he was obliged to report there for duty in the morning and at the close of working hours for the day. He left his post on the day in question to report at the station at Sixty-fifth street and Third avenue. He came westerly on the carriageway of Sixty-third street, pushing liis cart containing his broom and shovel. He was dressed in the white uniform with' a white helmet customarily worn by street sweepers. He turned into Second avenue at the northeast corner of Sixty-third street, and was proceeding northwesterly in the carriageway of Second avenue, his course being diagonally toward the northwest- corner of Sixty-fourth street and Second avenue,, as- if lie intended, to go through Sixty-fourth street to Third avenue*. There is a double street railway track in Third avenue and an elevated railroad above. ■ . '

The.evidence is open to conflicting inferences, and it might be found therefrom that while, he was crossing the first or easterly street railroad track at- á point from forty to sixty feet northerly of the northerly crosswalk of Sixty-third street, when the pushcart was in. the middle of the track and lie was about upon the first rail, he wa§. run down- by a loaded sugar truck owned by the defendant. The truck was drawn by two horses. The horses were going very fast, trotting or running, and going north and on the north-bound ■ ■track. The plaintiff was struck and knocked down by the head or shouTders of the off horse. The evidence tends to show that the driver was, and had.been from the time he crossed Sixty-tliird street, looking back and not giving proper -attention to' the street ahead of the horses lie was driving, and that the horses were a- considerable distance away from the deceased ylieh the pushcart passed into the ■lines along which the team and wagon were'moving. Only two-eyewitnesses' to the accident were.called. They were a father and his son, ten or eleven-■ years of age^ who' were 'on a .brewery •wagón passing "down the westerly side of Second avenue, just oppo-' site the defendant’s wagon, at the time of -the collision. As. there was nothing to attract'tlieir attention until the accident, or, at least, until they saw the .wagon approaching rapidly, it could not be expected that they closely observed the conduct of the deceased ' before the collision, became imminent. They, do not assume to tell us whether or not he. looked for approaching vehicles as lie was proceeding in his course up and diagonally across the street. If he did look and* saw the vehicle approaching, the evidence is suscepti- ' ble of the inference that it was so far away that it could not be said as matter of. law that he was guilty of negligence in proceeding on his way. • The fact that he-was looking straight in the direction in which he. visas' going, at the moment he was struck, does not show that he had not. exercised proper care. . While the degree' of care required to be exercised by the deceased was the same' as if he had not been killed, yet, owing to the fact of his-death and the difficulty in proving- freedom from contributory negligence in such- cases, the rule-with respect to the evidence of care is not so rigid. Although he was crossing the street, he was not crossing at right angles. The jury might well have found that his course was far more along than across the street.' The blocks are 200 feet long. The paved carriageway would not be over 50 feet in width. He may have been going then at least four or more feet up the. street to one across, and his back would be more than half way turned toward a vehicle approaching from the south. If he had been struck by a street car traveling in a fixed-groove and unable to turn out, perhaps the nonsuit would be sustained. He was, however, run down unnecessarily by a vehicle to which his back must have been partially turned and which should have slowed down or turned out. A street car was coming some little distance behind the wagon, but there was nothing to prevent the defendant’s driver from, turning out on either side. The negligence .of the defendant was clearly shown, and we are of the opinion that it cannot be said as a matter of law' that the decedent was guilty of contributory negligence.

The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

O’Brien, P. J., Patterson, Ingraham and Clarke, JJ., concurred.

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