
    Abraham Schoenfeld, by Lazarus Schoenfeld, his Guardian ad Litem, Appellant, v. New York Railways Company, Respondent.
    (Supreme Court, Appellate Term, First Department,
    December, 1914.)
    Negligence — contributory — action for personal injuries — when complaint dismissed and new trial ordered.
    Where a street railway car was over a block away when plaintiff attempted to walk across the track and was injured, it cannot be said as matter of law that he was not justified in assuming that the motorman would have had the car under control at the crossing, and whether plaintiff was guilty of contributory negligence in attempting to cross the track should have been submitted to the jury; and a judgment for the dismissal of the complaint will be reversed and a new trial ordered.
    Plaintiff appeals from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, entered upon the dismissal of his complaint at the close of his case.
    Samuel Schleimer (Meyer D. Siegel, of counsel), for appellant.
    James L. Quackenbush (William J. Sheils, of counsel), for respondent.
   Seabuby, J.

The accident happened at a street crossing, at which place the rights of the plaintiff and the defendant were equal. We cannot say, as a matter of law, that the plaintiff was not justified in assuming that the motorman would have his car under control when he'approached this place. The car was over a block away when the plaintiff attempted to cross the track, and whether his act in attempting to cross the ' track constituted contributory negligence should have been submitted to the jury.

Upon the facts, this case does not resemble those cases where the driver of a wagon turns his horse and wagon in front of a car a few feet away.

The question in dispute was essentially one of fact which should have been submitted to the jury, who could have determined it after taking into account the situation of the parties and the rate of speed at which the car was traveling.

Bijue and Cohalan, JJ., concur.

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