
    May Pelletreau, by William Montague Geer, her Guardian ad Litem, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence — a passenger alighting from, and passing behind a northbound street car struck by a south-bound car approaching on the adjoining track without warning of any kind.
    
    In an action to recover damages for personal injuries it appeared that the plaintiff, a school girl, with several companions alighted from the rear platform of one of the defendant’s north-bound cable cars at the north corner of Twenty-fifth street and Broadway in New York city; that the plaintiff and one of her friends walked around the end of the car in order to reach the west side of Broadway; that her friend, who was walking leisurely about six feet in advance of the plaintiff, succeeded in crossing the south-bound track in safety, but that before the plaintiff had reached the nearest rail of that track she was struck by a south-bound car.
    The accident happened at about noontime and the plaintiff testified that before attempting to cross the track she stopped to look for approaching cars and did not discover any.
    Evidence was given on behalf of the plaintiff tending to show that when the south-bound car was approaching the crossing the motorman failed to slacken its speed in the slightest degree or to give any warning of its approach. The only evidence given on behalf of the defendant was that the space between the two tracks was so narrow that the overhanging sides of passing cars were only one foot three inches apart, and that the maximum speed of the cars-was seven miles an hour.
    
      
      Held, that a judgment entered upon a verdict in favor of the plaintiff should be affirmed;
    That it was the duty of the motorman of the south-bound car to have given some warning of its approach, or to have had the car under such control as would enable him to avoid running down persons attempting to cross the street, and' that his failure to do so constituted negligence on the part of the defendant;
    That as the space between the north-bound car and the south-bound track was slight, and the plaintiff’s view to the north was obscured by the car from which she had alighted, and as no warning was given of the approach of the southbound car, it could not be said as matter of law that she was guilty of contributory negligence in thinking that she could follow her companion in safety.
    Yan Brunt, P. J., and McLaughlin, J., dissented.
    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 New York on the 5th day of February, 1902, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 14th day of February, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    The action is to recover for personal injuries sustained, as alleged, through defendant’s negligence, by the plaintiff who, after alighting about noontime of May 9, 1901, from an uptown Broadway car at the north crossing of Twenty-fifth street, passed behind it in order to proceed to the west side of Broadway and was struck as she stepped upon the south-bound track and run over by a downtown car.
    The plaintiff had been attending school at Yesey street and with four companions rode up to Twenty-fifth street where she says she got off at the crossing, turned around, and, following one of her friends, Marguerita Dingier, walked westward behind the car so near that she could touch it as she passed. She testified : “ I.looked up. I didn’t see any car in sight and then I went right on. I stopped to see if there was any car coming and then saw none and went right on and then tried to cross. I didn’t get quite to the nearest rail. This car coming the other way was the one that struck me. I got off this car that was standing still * * *. I was struck before I got to the nearest rail of that car coming south. The reason of that was that the car hangs over the rail some distanc.e; that is, the car goes further over the rail than the wheels do * * *. I just got as far as the rail but didn’t cross it * * *. I remember going right around the car and when I got around the car I remember being under another car.” She also testified : “ There was no bell rung. * * * I don’t know whether the rain kept me from seeing the car. It was broad daylight; there were no wagons. * * * I had an umbrella; 1 don’t think I had put it up yet. I couldn’t put it up I had so many parcels — had too many parcels. I made no effort to put it up. It was raining quite hard but I had to go such a short distance I didn’t think it was any use putting it up. I was not hurrying * * * Marguerite got over all right,.Marguerite Dingier, I couldn’t tell you how far. she was ahead of me. Somebody else got out between her and I, I was the very last one off of the car so she may have been quite a way in front of me as far as I know.”
    Marguerite Dingier testified : “We got off from the back of the car. The car had stopped, we all got off there. May Pelletreau then followed me * * * I saw a car coming down ; it was a good distance up; I went across Broadway there; * - * I was near the west sidewalk when I heard May scream ; I had crossed over the other track. First I seen May laying in the street; she was run over. No gong sounded, I am positive as to that; no bell at all from the car that was coming. * * * The car when I first saw her then had stopped. * * * When I went across I went slow • * * * it was raining very hard.” Other witnesses testified for the plaintiff that the car was coming faster than usual, and that no effort was made to stop it until after the girl was struck; that the car pushed her along the street some feet, stopping just north of the south crossing of Twenty-fifth street and was moved backward to get. her from between the wheels; that no gong was sounded or warning of any kind given ; that the first girl had preceded the, plaintiff in crossing by about six feet and the. motorman at the time was looking towards the west.
    In behalf of the defendant the' only testimony given was that the distance between the nearest rails of the two tracks is four, feet and four inches, and that when cars pass at that point the overhanging sides are only one foot three inches apart'; that the cars ran by cable at a maximum speed of seven miles an hour, and that this car was provided, not with a fender in front, but one underneath the car.
    Upon the evidence the jury returned a verdict in favor of the plaintiff, and from the judgment so entered the defendant appeals.
    
      Charles F. Brown, for the appellant.
    
      Albert Stickney, for the respondent.
   O’Brien, J.:

The insistence of the defendant upon this appeal as upon the trial is that the plaintiff failed to present evidence sufficient to warrant the inference that the motorman was negligent or that the plaintiff was free from contributory negligence, and that the proof offered shows on the contrary that the accident was one which only the plaintiff could have averted. It is claimed that immediately before the plaintiff was struck, it was impossible, owing to the presence of the uptown car which had stopped at the north crossing, either for the motorman to see her or for her to see the car, and it is contended that even were this not so, and there had been no obstacle in the way, then both would have been equally negligent in proceeding to the place of the collision.

A like contention was sustained in McCloskey v. Metropolitan St. Ry. Co. (67 App. Div. 617) where the pedestrian came upon the track from behind an elevated pillar at a street crossing and was immediately struck. A distinction, however, is to be drawn between such a case where no particular reason arises from the surrounding circumstances for the motorman’s apprehending danger of any kind, and one like this wherein the motorman from the conditions existing by the very presence of a car which has stopped at the crossing, has reason to believe that passengers are alighting therefrom or others may be going over at that point. In approaching a crossing, such as this — one of the most crowded in the city — he should have given some warning of his approach or have had his car under control so as to avoid running down those who desired to cross. Here it appears that the uptown car had been stopped for sometime, sufficient to .permit several passengers to alight from the rear door, and, while it was there, and the plaintiff was passing behind it, another passenger had preceded her across the street directly in front of the advancing ear, thus again apprising the motorman that persons were likely to emerge upon his track. In spite of such notice and with knowledge on his part that he was approaching one of the most frequented crossings, however, the motorman failed, according to the evidence, to slacken his speed in the slightest . degree or to sound the gong in warning of his approach'. Upon those facts, therefore, we think there was sufficient to support the inference of the defendant’s negligence.

In the' recent case of Schoener v. Metropolitan St. Ry. Co. (72 App. Div. 23), where the plaintiff was injured by being struck by defendant’s south-bound car while he was attempting to cross the ' Bowery and after passing in front of another south-bound car upon a parallel track, it was said: “ A duty rested upon the motorman to have the car under control as it approached the crossing and this duty was increased if it be true, as contended by the defendant, that his view of the crossing was obstructed by the Third Avenue car, for which reason he should have exercised more care. He could not approach the crossing at a high rate of speed and then when a collision occurred, excuse himself because there was another car in front which prevented his seeing the crossing.” And in another case in this court (Schwarzbaum v. Third Avenue R. R. Co., 54 App. Div. 164; second appeal, 60 id. 274), where a pedestrian was run over by an uptown car at a south crossing after having passed behind a south-bound car, it was said: There was evidence of negligence. The failure to sound a gong or bell or give some notice of the approach of a car moving even at ordinary speed and near a street crossing was under the circumstances some evidence from which negligence coüld be inferred.”

' Upon the evidence here the jury could infer that the car approached the crossing, where another car going in the opposite direction had stopped to discharge passengers, at a rapid speed and without the gong being .sounded or warning given.

The case of Schwarzbaum v. Third Avenue R. R. Co. (supra) also is authority for holding that where the testimony was that the pedestrian had looked just before stepping upon the track and then, seeing no car, proceeded and was struck by the sudden approach of the car, it could not be said as matter of law that he was guilty of contributory negligence, but that his conduct and all the circumstances of the occurrence were to be passed upon by the jury. Here it was undisputed that the plaintiff followed her friend who preceded her by about six feet and who without hastening her steps crossed in safety. The space between the north-bound car and the west track was slight and plaintiff’s vision in the northerly direction was obscured by the car behind which she passed, and, as she heard no gong sounded or other warning of an approaching car, we cannot say that she was guilty of contributory negligence because she may have erred in thinking she could follow her companion in safety.

Our conclusion, therefore, is that the judgment entered upon the verdict should be affirmed, with costs.

Patterson and Laughlin, JJ., concurred; Van Brunt, P. J., and McLaughlin, J., dissented.

Judgment affirmed, with costs.  