
    William Dooley, Respondent, v. Union Railway Company of New York City, Appellant.
    
      Negligence — injury to a pedestrian on a city street from being struck by the step of a passing railway car—failure to establish the absence of contributory negligence.
    In an action brought to recover damages for personal injuries, it appeared that on the evening in question, while the plaintiff was walking in the roadway of a public street in the city of New York, upon which the defendant operated a double-track street railway, he was struck and injured by the step of one of the defendant’s cars which approached him from behind, while running at a rapid rate of speed. It appeared that it was a dark night; that the roadway between the sidewalk and the defendant’s tracks was thirty feet wide; that the plaintiff chose to walk in the roadway because the sidewalk was out of repair; that he was familiar with the condition of the street and with the manner in which the defendant’s cars were operated, and with the fact that they ran very rapidly at night.
    
      Held, that, aside from the question whether there was sufficient evidence to warrant a finding of negligence on the part of the defendant, the plaintiff could not recover, for the reason that the plaintiff did not show that he was free from contributory negligence.
    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 9th day of December, 1904, upon the verdict of a jury for $750, and also from an order entered in said clerk’s office on the 20th day of December, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      Bayard H. Ames, for the appellant.
    
      James A. Douglas, for the respondent.
   Patterson, J.:

The. plaintiff recovered a, judgment in an action for personal injuries which he claimed to have sustained through the negligence of the defendant’s servants in operating a car on its railway in the city of New York. It appears that at about a quarter-past eight o’clock on the night of March 15, 1902, he was walking by the side of a railway track of the defendant’s road on Morris Park avenue, between Delaney place and Rose street in the borough of The Bronx in the city of New York. It was a dark night. The plaintiff chose to walk in the roadway and not on the sidewalk because of the bad condition of that sidewalk, it being out of repair. While he was proceeding in a southerly direction .one of the defendant’s cars came along rapidly behind him and the step of the car struck him in the ankle and lie-sustained injuries. He was familiar with the condition of' the street, with the manner in' .which the defendant’^ ears were operated and he knew that'at night they ran very rapidly. Witnesses for . the plaintiff say that the night was so dark they could not see him more than ten feet away. There was an electric light some seventy-five feet distant from the point at which the plaintiff was struck, but there is nothing whatever. in the evidence to indicate that the motorman in charge of the car could have seen plaintiff or had reason to suspect that any one was walking in the roadway close to the track or was in. such a situation that lie might be struck by the car. We are unable to gather from this record any evidence of negligence on the part of those in charge of the defendant’s car, unless it is to be assumed that running a car at a rapid rate of speed where it is not'to be presumed that pedestrians are to be encountered is. in and of itself negligence' or evidence of negligence. But whether there was sufficient to go to the jury on the question of negligence or not it is manifest that, the plaintiff did not show that he was free from contributory negv ligence. He knew all about the railway tracks and the operation of the defendant’s c&rs thereon. His statement is that he was upon the roadway and not on the sidewalk because the former was safer. The distance between the sidewalk and the tracks was thirty feet, and yet" with his knowledge of the locality he chose to walk so near to the track upon which a car might approach him from the rear that he exposed himself to the danger of being struck by such a car. The evidence indicates that the plaintiff took no care at all to avoid being struck by a car from behind, and it would be a fair inference that he negligently placed himself in a position of peril.

We think the judgment and order should be reversed and a new trial ordered, with costs to appellant to abide the event.

O’Brien, P. J., Ingraham, ' McLaughlin and Hatch, J.J., concurred.

J udgment and order reversed, new trial ordered, costs to appel~ lant to abide event.  