
    Caroline H. Brown, Appellant, v. George I. Roberts and Bros., Inc., Respondent.
    Second Department,
    December 13, 1912.
    Streets and highways.— injury to pedestrian crossing city street —erroneous nonsuit—negligence per se — duty of pedestrian to avoid approaching vehicles.
    Where in an action for personal injuries it appears that the plaintiff while walking down a city street saw defendant’s horse and wagon approaching some forty feet on her left over a cross street; that she was then about to step off the curb and did so, but at once withdrew so close to the curb that her dress touched it, to allow the horse to pass, there being ample room; that the horse coming straight at the corner was turned sharply toward her and she was injured; and that she was in a safe place had the horse been kept straight in the way, it is error to dismiss the complaint.
    The plaintiff was not negligent per se in failing to go back upon the curb when she saw the wagon approaching.
    It is customary for a pedestrian to escape danger from trucks approaching with unabated pace by retreating a step or more, as the occasion may require, but he is not bound to return to the curb, unless the team ruthlessly, or of right, comes upon him in such a way as to demand that he do so.
    Re argument of an appeal by the plaintiff, Caroline H. Brown, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 2'7th day of March, 1912, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the New York Trial Term. (See 152 App. Div. 933.)'
    
      Burt L. Rich [Martin T. Manton with him on the brief], for the appellant.
    
      Edward Stetson Griffing, for the respondent.
   Thomas, J.:

Plaintiff going down Nassau street in the city of New York saw defendant’s approaching horse and wagon some forty feet on her left on John street. She was then about to step off the curb and did so, but at once withdrew towards and so close to the curb that her dress touched it, to allow the horse to pass, as there was ample room to do. But the horse coming straight theretofore at the corner turned sharply towards and upon her, and for tire injury the action was brought. She was in a safe place had the horse been kept straight in the way, but when, going at a good pace, he was turned right upon her while she was in plain view of the driver, her position was made dangerous and injury followed. It cannot be said that a pedestrian is per se negligent for failure to scurry back upon the curb when a team is seen approaching. This would make traveling in a city street, far .beyond the present practice, an alternation of progressions and retrogressions at crossings. It is the custom for the pedestrian to escape the danger menaced by trucks approaching with unabated pace by retreating a step or more, as the occasion may require, but it is not the usage or requirement that-he shall retrace his way to the level of the curb, unless the team ruthlessly or of right comes upon him in such way as to demand that he do it. The ■ driver had no right to turn his team against the. pedestrian at the time of passing, and his abrupt manoeuvre in the present instance, if the plaintiff tells the truth, demands that the jury consider whether he was negligent, and also the conduct of the plaintiff as bearing upon the question of due care on her part. The complaint sufficiently charges the ownership of the team to which there is no denial in the answer,

The judgment should be reversed and a new trial granted, costs to abide the event.

Jenics, P. J., Carr and Woodward, JJ., concurred.

Judgment reversed on reargument and new trial granted, costs to abide the event.  