
    (85 Misc. Rep. 40)
    BRANDT v. NEW YORK RYS. CO.
    (Supreme Court, Appellate Term, First Department
    April 14, 1914.)
    1. Street Railroads (§ 117)—Injuries to Persons on Tracks—Jury Question.
    Where an áutomobilist, who had an unobstructed vision for about 200 feet, started across a street in which there were car tracks, when no car was in sight, he was not negligent as a matter of law in crossing the tracks without again looking for cars, since no car could then be in dangerous proximity, unless it was being run at an excessive speed.
    [Ed. Note.—For other cases, see Street Railroads, Cent. Dig. §§ 239-257; Dec. Dig. § 117.*]
    2. Street Railroads (§ 114*)—Injuries to Persons on Tracks—Actions— Evidence.
    Proof that a street car, even after plaintiff’s automobile was in clear view on the tracks, was operated at the excessive speed of 30 miles an hour would support an inference of negligence on the part of those in charge of its operation.
    [Ed. Note.—For other eases, see Street Eailroads, Cent. Dig. §§ 239-250; Dec. Dig. § 114.] '
    Appeal from Municipal Court, Borough of Manhattan, Fifth District.
    Action by William O. Brandt against the New York Railways Company. From a judgment of dismissal at the close ■ of plaintiff’s case, he appeals.
    Reversed and remanded.
    Argued March term, 1914, before SEABURY, LEHMAN, and BI-JUR, JJ.
    Leon Kauffman, of New York City, for appellant.
    James L. Quackenbush, of New York City (A. H. Cole, of New York City, of counsel), for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep*r Indexes
    
   LEHMAN, J.

The plaintiff’s automobile was injured by a collision with a trolley car operated by the defendant. The automobile had been standing on the west side of Broadway, a short distance south of Eleventh street. The collision occurred while the plaintiff was crossing the defendant’s easterly track, in an attempt to turn his automobile to the north on the easterly side of Broadway. The plaintiff had an unobstructed view to the south for a distance of at least 200 feet, yet he did not see the defendant’s north-bound car until he was in the middle of the track. At that time the defendant’s car was ISO feet away, going at a speed of 30 miles an hour. The plaintiff did not attempt to pass in front of the car after he saw it, but thought he might avoid a collision if he reversed his automobile. The trial justice dismissed the complaint, holding that this testimony failed to show negligence on the part of the defendant, and did show negligence on the part of the plaintiff.

While there is no doubt but that the plaintiff failed to look south before he proceeded upon the deféndant’s easterly track, he did look north and south before he left the curb, and it is fairly inferable that he looked south again after he halted to let a south-bound car pass him, for he says that when he crossed the westerly track the south-bound car had already proceeded 100 feet. If he started across the street knowing that no car was in sight, I do not think that as a matter of law. he should be held guilty of negligence for proceeding to cross the tracks without again looking for a car, since no car could then be in dangerous proximity, unless it came along at an unusual and excessive rate of speed.

On the other hand, where the testimony shows that the car was proceeding at an unusual rate of speed, even after plaintiff’s automobile was in clear view, negligence in the operation of the car may fairly be inferred.

It follows that the judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.

BIJUR, J.

(concurring). Plaintiff’s story is that he started to cross the easterly north-bound track on Broadway at a time when he saw defendant’s north-bound car from 100 to 150 feet away from him. He also says that the car was running at the rate of 30 miles an hour when it struck him. The question whether the attempt to cross the track under those circumstances was an act of contributory negligence is, to say the least, one for the jury. ,

The judgment dismissing the complaint at the. close of plaintiff’s case must therefore be reversed, and a new trial ordered, with costs to appellant .to abide the event.

SEABURY, J., concurs.  