
    Margaret T. Ring, Respondent, v. Nassau Electric Railroad Company, Appellant.
    Second Department,
    November 28, 1906.
    Negligence—pedestrian injured by street car—view obstructed by pillars— sufficient evidence of freedom from contributory negligence.
    In an action by a pedestrian who was struck by a surface car at intersecting city streets where it appears .that the car approached rapidly along a track whose nearest rail was two and one-half feet from the curb, that the view in the direction from'which the car approached was obstructed for a block by pillars along the sidewalk placed one and one-half feet from, the curb, and that the pedestrian looked as she stepped from the curb and cleared the-line of pillars, the finding of the jury in her favor will not be set aside on the ground that- she was guilty of contributory negligence as a matter of law.
    Although under the circumstances the pedestrian could have obtained a view along the track by exercising greater care, such an error of judgment does not establish.the absence of ordinary care.
    Appeal by the defendant, the Nassau Electric Railroad Company, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 13th day of-February, 1906, upon the verdict of a jury for $200, and also from an order entered in said clerk’s office on the 18th day of February, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      I. R. Oeland, [ George D. Yeomans with him on the brief], for ... the' appellant.
    
      Andrew C. Morgan, for the respondent.
   Hooker, J.:

The defendant appeals from a judgment in plaintiff’s favor and from an order denying a motion for a new trial in this action for personal injuries alleged to have been caused by the defendant’s negligence. At the time of the accident defendant operated a line of street railway in Washington street in the borough of Brooklyn. That street runs nearly north and south. Somewhat to the east of the center of the street was a double track of railway, the most westerly rail of which was nineteen feet and seven inches distant from the .west curb of the street. Near the west curb was a third, or switch, track, the westerly rail of which was two feet six inches distant from the west curb of the street. Nassau street crosses Washington street at right angles, and at the west side-of the latter street the distance between the curbs of Nassau street is thirty-two feet. A row of pillars supporting the approach to the Brooklyn Bridge stood in the sidewalk on the west side of Washington street. One of these pillars was immediately in the angle at the junction of the north curb of Nassau street and the west curb of Washington, its east face being about a foot or a foot and a half west of the Washington street curb, and its south face about the same distance north of the-Nassau street curb. At the southwest corner of these streets was another pillar similarly situated at the junction of the curbs, and continuing south for a whole block were similar pillars, approximately twenty-seven feet apart, whose faces were distant from the curb line of Washington street about a foot or a foot and a half. All the pillars were about fifteen inches wide.

On the 19th day of July, 1904, between six and half-past six o’clock in the afternoon, the plaintiff, with three friends, was going south on the west side of Washington street, approaching Nassau street. She was walking on the part of the sidewalk between its center and the curb, and when she reached Nassau street she stopped for a moment' to speak with her friends and then turned eastward to cross Washington street at the north line of Nassau street. This was in rush hours and the sidewalk was full of people. She testified that when she went to step down off the curb she looked to see if a car was coming and as she was in the act of stepping she discovered a car approaching from the south on the switch track at a very rapid rate. Her evidence in this respect was as follows“ When I stepped down I looked to see if a car was coming, first, I could not see any on account of the pillars. 1 looked, I did' not see any car there, when I went to step down I looked and I saw the car coming down. Í went to step back,, ás I did the car struck me, before I could get out of- the way it caught me; it struck'me on the shoulder and knocked me over.” She testified that she heard no bell or gong sounded. •'

The jury has found that the plaintiff, was not guilty-of contributory negligence and the defendant on this appeal asks us to hold' as a matter of law- that she was guilty of - negligence which com tributed to the accident. We are of the opinion that the defendant’s contention should not prevail. '.

Among other courses at least these three were open to the plaintiff at the time she turned from speaking to her friends to go eastward ; she could have stepped far enough to the west in the side-,' walk so that she would have had a diagonal view between the pillars, which have been mentioned, and could have'then discovered if a car Were approaching oh the switch track from the south; or ’she could have stood close to the curb on the. westerly side of Washington street and leaned over that curb toward the east far enough to obtain a view southward unobstructed by the pillars; we hardly think the plaintiff was required, as matter,of law, to go to. the length of either -of these two courses,. or in the alternative suffer conviction of failure to exercise ordinary caution ;■ or, third, she could do as" she testified that she did, namely, start to cross the street by stepping- off the curb and look as she. stepped. The switch track was so near the curb and the car was approaching so rapidly that, although she discovered- its proximity and tried to recover herself as she stepped, she was unable to get out of the way and was injured.. Under the circumstances of the case, her negligence was a question fpr the jury. It appears that she was mindful of her safety, for she looked as soon as she cleared the fine of pillars which Was as soon as looking would have availed anything.

The record presents no question for our consideration involving the matter of the ■ defendant’s, negligence. The situation does not disclose her failure to exercise ordinary caution, and with the jury’s determination that she exercised the degree of caution which an ordinarily prudent person would have shown under the same, or similar circumstances we should not interfere, on the ground that the record is barren of evidence to sustain that finding of fact.

The defendant refers to Reed v. Metropolitan Street R. Co. (180 N. Y. 315) as an authority to sustain its position. In our view this case is not decisive of the -question here presented. There the plaintiff passed behind a street car standing at a street corner, and in attempting, to cross the adjacent parallel track was struck by a car approaching from the opposite direction. There the plaintiff testified : “ When I got there I did not look north and see if anything was coming down on that south-bound track.” The differ-" ence between the cases lies in this, that whereas Peed never looked or tried to look, or attempted by the use of his sense of sight to ascertain if it was safe to cross, the plaintiff in the case at bar looked as she stepped, and as soon as she could see, presumably supposing she could avoid impending danger, even though she did not become acquainted with its presence until she was stepping off the sidewalk. She erred in judgment, but the error does not establish the absence of ordinary care, as matter of law.

The judgment and order should be affirmed, with costs.

Present—Hirschberg, P. J., Jenks, Hooker, Gaynor and Miller, JJ.

Judgment and order of County Court of Kings county unanimously affirmed, with costs.  