
    Elizabeth Beirne, as Administratrix, etc., of John Beirne, Deceased, Respondent, v. Union Railway Company of New York City, Appellant.
    First Department,
    June 15, 1906.
    negligence — death of pedestrian caused by surface car — failure of decedent to heed warning — judgment for plaintiff reversed.
    The plaintiff’s intestate, while leading a cow at night, was struck and killed by a surface car coming from behind. The evidence showed that the car was proceeding at a speed of five or six miles an hour in a sparsely populated part of the city; that as soon as the motorman saw the intestate he rang his bell; that the intestate paid no attention to the bell, but when the car was about twenty-five feet from him crossed to the track on which the car was moving, and although the motorman put on the brake and reversed the car he was unable to stop it before it struck the intestate.
    
      Reid, that a verdict for the plaintiff was against the weight of evidence.
    O’Brien, P. J., and Houghton, J., dissented.
    Appeal by the defendant, the Union Railway Company of Hew 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 Hew York on the 7th day of December, 1905, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 27tli day of November, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    
      Henry A. Robinson, for the appellant.
    
      Charles Caldwell, for the respondent.
   Ingraham, J.:

This action was brought to recover the damages caused by the death of the plaintiff’s intestate. The conductor of the car which caused the accident, called for the plaintiff, testified that on his trip from Yonkers to the city of New York on the night of February 27, 1905, as the car appz'oached Two Hundredth street, wlzat he called the reverse attracted his attention, and he went to the front of the car; that the rails of the track were slippery, and tlze car was proceeding on a down grade, the power being turned off ; that when he got to the front of the car he saw a man upon the track fz‘om twenty to twenty-five feet in fz’ont of the car driving a pair of cows; that at that time he was between tlze two tracks and about seventy-five feet in fz’ont of the car; that “the cows azid calves were steering over to his right,” but were on the downtown track at that tizne; that the motorman applied-the reverse twice, and when he applied the reverse the first tizne it did not take ; that the car went about seven feet after it struck the deceased, who was found upon his face under the front bumper of the car; that his head was then south, and a portion of his body was between the two tz-acks. He subsequerztly testified that when he first saw the deceased, he was about seventy-five feet in frozit of the car between the two tracks; that the man was facing sozzth; that when the cows wez'e going to the right across the track the deceased came over on the south-bound track; that he had a rope in his hands, one ezid of which was fastened to the cow’s neck; that coming down grade from Two Hundredth street the motorznan was not talking to the witness at azzy time, but the cows swerved or switched from one tz-ack towards the west; that when the cows switched over from the south to the north track the car was about fifteen feet from the cows: that from the time he first saw the man he was walking slow, did not increase his speed at any time; that when he first saw the cows they were on the south-bound track and when he next saw them they went west. Upon cross-examination he said that he did not want the jury to understand that it was the fault of the motorman that the deceased was killed; that he did the best he could in an emergency; that to reverse a car it means that it stops the car right away; that the first thing that attracted his attention was that the car seemed to be stopping, jerking, which was caused by the reverse; that when he first saw the deceased after the jerk caused by the reverse he was about twenty-five feet from the car, but before that, in looking from the back platform he saw the man about seventy-five feet from the car; that at Two Hundredth street he looked down to see if any one wanted to get on the car and then he saw the man in front of the car; that the accident happened between One Hundred and Seventy-ninth and Two Hundredth streets about seventy-five feet south of he south crossing of Two Hundredth street. The motorman, called for the plain tiff, testified that as he crossed Two Hundredth street the car was.going about five or six miles an hour; that as he left Two Hundredth street he saw a shadow on the track-and he rang his bell and put on his brake which decreased the speed of the caito three or four miles an hour and then to one or two miles an hour; that lie struck the deceased about fifty feet from the corner. This witness was recalled by the defendant and testified that as he was coming down the middle of Two Hundredth street lie threw off his power; that as he got to the south side of Two Hundredth street he saw a shadow, when he rang his gong and put on his brake; that lie then saw he was approaching the shadow and reversed the car, and as he reversed the car it struck the deceased; that the deceased did not get off the track, nor did he look around; that he first saw the man when the car got to Two Hundredth street, when he stopped the car as quickly as he could, first, by putting on the brake and then the reverse; that when he first saw the deceased he was about twenty-five feet in front of the car; that he could not'see that it was a man, but that all he could see was a shadow upon the track; that when he got close he saw the cows and the man, but from the time he first saw the shadow he did everything he could to stop the car; that the brakes and appliances of the car were in good condition and the rail was dry. A policeman, called for the plaintiff, testified that it was a clear, cold night, but he could not tell whether it was moonlight; that there was considerable snow upon the ground which had been cleaned up between the tracks, the snow being brushed to each side of the tracks. This was all the evidence as to the accident.

I think it clear that the finding that the defendant was guilty of negligence was against the weight of evidence. The only proof is that on a dark night as the car was proceeding south at a speed of five or six miles an hour, there appeared in front of the car, either upon the north-bound track or between the track, a man driving cows; that as soon as he was seen the motorman, who was looking in his direction, attending to his duties, attempted to stop the car and rang the bell; that the deceased so far as appeared paid no attention to the bell, but when the car was about twenty feet from him crossed to the south-bound track upon which the car was proceeding and before the car could be stopped was struck. The locality was not in the thickly populated part of the city, and considering the speed of the car, it is quite apparent that if the deceased had been listening or had obeyed the warning given by the motorman, he could easily have avoided the accident. I do not see what more the motorman could have done. It certainly did not appear that he was negligent in not seeing the deceased before he did, or in not endeavoring to stop the car sooner, or that the car could have been stopped sooner than it was, and avoided the accident.

As the verdict was against the weight of evidence, it cannot be sustained, and the judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Patterson and McLaughlin, JJ., concurred; O’Brien, P. J., and Houghton, J., dissented.

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