
    Leonard Long, as Administrator with the Will Annexed, etc., of Katharine Schmidt, Deceased, Respondent, v. Union Railway Company of New York City, Appellant.
    First Department,
    December 6, 1907.
    Railroad — negligence — pedestrian killed'by surface car — contributory negligence — erroneous charge -r- excessive verdict.
    It is incredible that a decedent, being without physical defect, stepped in front of a rapidly approaching car in broad daylight when it was 300 feet awáy, and crossing the track, a distance of four feet eight inches,, was struck as she was stepping from the last rai}. A finding that said decedent was free from, contributory negligence is against the weight of evidence.
    It is error to refuse to charge that if the jury find that one who was killed by an approaching surface car stepped Upon the track when the car was not more . than six or seven feet away, their verdict must be for defendant whatever the speed of the car.
    A verdict of §3,000 for the death of a woman of fifty-eight years who, being housekeeper for her family, leaves surviving a husband and three sons from twenty-four to thirty years of age, is excessive.
    Appeal by the defendant, the Union Railway Company of New York City, 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 16th day of February, 1907, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 27th day of February, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles F. Brown [Bayard H. Ames with him on the brief], for the appellant.
    
      Frank F. Davis [William M. Sullivan with him on the brief] of counsel [John J. Hynes, attorney], for the respondent.
   Clarke, J.:

This is an appeal from a judgment entered upon a verdict for $3,000 in an administrator’s action to recover damages for the death of one Katharine Schmidt, alleged to have .been caused by the defendant’s negligence. The accident occurred at One Hundred and Sixty-sixth street and the Boston Post road on July 2, 1904, about eight-thirty in the- evening, while it was still light. The plaintiff’s testimony in regard to the accident is given by a niece of the decedent, one Mrs. Chapman. -The witness and the decedent went to the north-east corner of One Hundred and Sixty-sixth street on the Boston Post road, Mrs. Schmidt intending to take a south-bound car. To take said car it was necessary to cross the Post road, the down-town track being on the westerly side of the street. It was agreed on the record that it is about four hundred feet from One Hundred and Sixty-sixth to One Hundred and Sixty-seventh street; that the width of Boston road from curb to curb is fifty-two and one-half feet, and that the distance from the easterly curb to the westerly rail of the down-town track is thirty one and seven-eighths feet, and from the easterly curb to the easterly rail of £he down-town track is twenty-seven feet six inches. Although Mrs. Chapman was somewhat- uncertain as to distance, testifying" at one time that when Mrs. Schmidt stepped on the track the car was a block away, and at another time half a block, reading her evidence in the most' favorable light to plaintiff, she testified in substance that when the'decedent started directly across the -road, the car was- just about at One Hundred and Sixty-seventh street — that is, four hundred feet away — in plain sight, with, no vehicles or obstructions of any kind in the way, and running fast. The decedent was strong, well and hearty, possessed of good eyesight and hearing; neither she nor Mrs. Chapman made any signal to the" approaching motorman, or indicated in any way that she desired to board the car; the car did not change its speed from the' first time she saw it until it struck-the decedent. She said: “I watched the car, saw the car coming, and then I watched my aunt, to see her cross, becauáe I wanted to see that my aunt got the car. * * * I did not see her do -anything at all, she just went right acrosswhen decedent stepped on the first rail of the southbound track the car was about half a block away; as the car struck her she was just stepping off the track; she lay to the west of the track, “ maybe three feet * * * maybe two.”

So that the evidence for the plaintiff in effect is that decedent stepped upon the south-bound track in front of a rapidly approaching car, in plain sight, in daylight, when the car was 200 feet away, and walking directly across, before she could cross the.track, a distance of four feet and eight inches, the car, without slackening its speed, ran 200 feet and hit her just as she was stepping off the last rail. This account of the accident is not credible..

For the-defense four witnesses testified that decedent stepped on the track from five to seven feet in front of the car. There was testimony that the motorman rang his bell, threw off his power and put on his brake, and that when the car was brought to a standstill decedent was lying about even with the middle of the car.

This judgment cannot be sustained for these reasons:

First. The verdict was clearly against the weight of the evidence. The plaintiff failed to show that decedent was free from contributory negligence.

In Greene v. Metropolitan Street R. Co. (100 App. Div. 303 ; approved in Lofsten v. Brooklyn Heights R. R. Co., 184 N. Y. 148) Mr. Justice Ingraham said: “ There was no evidence to justify a finding that the defendant was negligent or that the plaintiff was free from negligence. The plaintiff and his companions walked in front of an approaching car which was coming at a rapid rate of speed. There was nothing to indicate to the motorman that they intended to cross in front of the car; nothing to require the motorman to stop the car to let them cross. But whatever may be said of the negligence of the defendant, it is entirely clear that the accident was caused by the negligent act of the plaintiff in stepping in front of this rapidly approaching car when it was at such a distance from him that no act of the motorman could have prevented the accident. While I do not think that as a matter of law it is contributory negligence for a person to attempt to cross the track of a street railroad because a car is in sight, it is certainly reckless conduct to step in front of a rapidly approaching car when the car is only ten feet away. I think it immaterial whether or not the plaintiff looked after leaving the sidewalk. If he looked he must have seen that an attempt to cross in front of the car would necessarily result in a collision. If he saw a rapidly approaching car when he stepped off the sidewalk and he walked on without looking, and because of his failure to look he placed himself in a position, of danger, he was guilty of negligence which precludes recovery.”

In the Lofsten Case (supra) the court said : “We think that the evidence showed that he [plaintiff] was guilty of contributory negligence as a matter of law, and that the judgment in his favor should be reversed. * ( * * This car was proceeding át a rate of five or six miles an hour. * * * It was in the neighborhood of fourteen feet from this curb from which plaintiff saw the car to the nearest rail of the track upon which he was struck. According to his version, there was nothing whatever to obstruct his view of the approaching car. * * * lie was struck by the nearest forward corner of the car. * * * If he had exercised the slightest heed by either looking or listening, he would have detected its presence in such close proximity as to disclose at once the foolhardiness of stepping upon the track in front of it. Nothing but utter oblivion of his surroundings and of his obligations could 'mislead a traveler into the conduct displayed by plaintiff. It is true that the defendant’s employees were under the obligation to manage the ear with care and prudence, but this obligation of care was not confined to them. It also rested upon the plaintiff, and their negligence, if they were guilty of it, did not relieve him from the consequences of his own fault.”

Second. The defendant asked the court to charge : “ If the jury believes the testimony of defendant’s witnesses or some of them, that the car was not more than six or seven feet away from Mrs. Schmidt at the time she stepped upon the track, their verdict must be for the defendant whatever may have been the speed of the car.” The court refused so to charge, and the defendant excepted. This refusal constitutes reversible error. In Bambace v. Interurban Street R. Co., 188 N. Y. 288) the court below refused”to charge: “ If you believe that the deceased ran or stepped on the track when the horses attached to the defendant’s car were not more than five or six feet from him, as testified to by several of plaintiff’s witnesses, then your verdict must be for the defendant.” The Court of Appeals held that the defendant was entitled to the instruction asked for and that, if-the jury so found, it would follow as matter of law that the decedent was guilty of contributory negligence, and for this refusal reversed tlie judgment.

Third. The verdict Was excessive. The decedent was a woman of fifty-eight, and left surviving a husband and three sons, thirty, twenty-eight and twenty-four years of age, respectively. She was the housekeeper of,the family. The damages are limited to the fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the person or persons for whose benefit the action is brought. (Code Civ. Proc. § 1904.) There Was no support in the evidence for the amount of damages found.

The 'judgment and order ..should be reversed and a new trial ordered, with costs to-appellant to abide the event.'

Patterson, P. J., Ingraham, Laughlin and Scott, JJ., concurred.

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