
    John Gullery, Respondent, v. Constantine J. MacGuire, Appellant.
    (Supreme Court, Appellate Term,
    January, 1912.)
    Negligence — Contributory negligence — Question for jury — Automobile accident.
    Where, in an action to recover damages for personal injuries sustained in being run over by defendant’s automobile, it appears that before starting to cross the street the plaintiff saw the defendant’s automobile approaching rapidly about 200 feet away according to plaintiff, but apparently somewhat closer according to other testimony produced by him, although evidence introduced by the defendant negatived the existence of contributory negligence on plaintiff’s part, the question for the jury still remains whether under the circumstances the plaintiff acted as a reasonably prudent man; and it was error for the court to refuse to charge that even if the accident happened in the manner testified to by the plaintiff and his witnesses the verdict may be for the defendant.
    Appeal by the defendant from a judgment of the Municipal 'Court of the city of New York, borough of Manhattan, ninth district, entered upon a verdict rendered in favor of the plaintiff and from an order denying a motion for a new trial.
    James, Schell & Elkus (Edgar J. Treacy, of counsel), for appellant.
    ■ Harry M. Steinhardt, for respondent.
   Lehmau, J.

The plaintiff was run down by the defendant’s automobile. He has recovered judgment for the injuries thereby sustained. He testified that, before starting to cross the street, he saw the defendant’s automobile approaching rapidly. The automobile was- then about 200 feet away, according to the plaintiff, but apparently somewhat closer according to other testimony produced by him. If the defendant had rested at the close of the plaintiffs cáse, the trial justice could not have directed a verdict for the plaintiff; for it is -a question of fact for the jury whether o>r not.under the circumstances the plaintiff showed reasonable care in leaving a place of safety and proceeding across the street without regard to the approaching automobile. The defendant did, however, introduce other evidence'which, if true, negatived both his own negligence and the absence of contributory negligence of the plaintiff. The issues to he considered by the jury were not only those raised by the conflict of testimony; but, even if they believed the plaintiff, they were still hound to consider whether under the circumstances he acted as a reasonably prudent man. In a similar case (Netterfield v. New York City R. Co., 129 App. Div. 56) it is held that it was fatal error for the trial justice to refuse to charge that, even if the accident happened in the manner testified to by the plaintiff and his witnesses, the verdict may be for the defendant. In the case under consideration the trial justice refused the same request, and his error in my opinion requires that the judgment be reversed.

Giegerioh and Pendleton, JJ., concur.

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