
    Thomas A. Mills, Respondent, v. The Brooklyn City Railroad Co., Appellant.
    (City Court of Brooklyn
    General Term,
    October, 1894.)
    Plaintiff attempted to cross a street on which defendant’s road was operated at a time when he saw a car abe at sixty feet distant, but before he could cross the track, a distance of about twelve feet, he was struck and injured by the car. The driver of the car testified that when he saw the plaintiff, about thirty-eight feet distant, he called out to him and applied the brakes, but on account of the steep grade and the brakes not taking hold he was unable to stop the car until it reached the plaintiff. Held, that it could not be said, as a matter of law, that plaintiff was guilty of contributory negligence in assuming that he could walk that distance before the car reached him, nor that the driver did all that a prudent man should have done; but that such questions were for the jury to determine.
    Appeal from judgment in favor of the plaintiff, entered upon the verdict of a jury, and from order denying motion for a new trial.
    
      Moore do Wallace, for appellant.
    
      Shorter do Kurth {J. Stewart Hoss, of counsel), for respondent.
   Osborne, J.

This action was brought to recover damages for injuries sustained by plaintiff through the alleged negligence of defendant. Plaintiff obtained a verdict, and from. the judgment entered thereon, and also from the order denying a motion for a new trial, defendant appeals.

The counsel for the appellant contends that the learned trial judge erred in denying the motion made to dismiss the complaint at the close of the plaintiff’s case, and again upon the whole case; which rulings were duly excepted to.

The testimony of and on behalf of plaintiff shows that on the 4th day of February, 1893, between four and five o’clock n. m., plaintiff (a man upwards of seventy years of age) arrived at the corner of Marcy avenue and South Fourth street, over which latter, street defendant then operated. one of its lines of horse cars; the day was damp and there was mud and slush on the streets; when plaintiff reached the curb at South Fourth street he paused and looked up and down the street to see if a car was approaching, and he testifies that he saw one of defendant’s cars approaching from the west; that the horses’ heads were one, if not two lengths of a car ” the other side of the farther crosswalk on South Fourth ■street, a distance of upwards of sixty feet from the crosswalk which he was about to cross; plaintiff started to cross, and, to clear the car track on which the car was approaching, it was necessary for him to traverse a distance of twelve feet four and a half inches; plaintiff was impeded somewhat in his progress by the mud and slush, and before he could cross the track he was knocked down by the horses of the car and suffered the injuries complained of. Defendant’s driver testified that when he reached the lower crossing on Harcy avenue (a distance of thirty-eight feet two inches from the crosswalk on which plaintiff was) he saw the plaintiff starting to cross; that his horses were going at a slow trot; that he, the driver, called out to plaintiff and applied the brakes, but that owing to its being a down grade at that place, and the track being slippery and his brakes not taking hold properly, he was unable to stop the car before it reached the plaintiff. Other witnesses were also put on the stand by defendant’s counsel with a view of corroborating the driver.

The learned counsel for the appellant claims that plaintiff failed to show that he exercised due care, and that he was guilty of contributory negligence.

We do not think that the evidence showed such want of due care on the part of the plaintiff as to warrant the trial judge in taking that question from the consideration of the jury. It is true that the courts have laid down the rule that, where parties take chances to cross a railroad track in front of an approaching car and fail, they must bear the results of their own miscalculations, but in the case before us there was no taking of chances, no attempt to make close calculations ; the car was, according to plaintiff’s testimony, upwards of sixty feet away when he looked and saw it approaching as he was about to cross the street, and he had twelve feet four and a half inches to walk to get entirely across the tracks. We cannot say, as matter óf law, that plaintiff was negligent or lacking in due care when he assumed that he could walk twelve feet four and a half inches before the car would travel upwards of sixty feet; we are of the opinion that that was plainly a question for a jury to determine. Wells v. Brooklyn City R. R. Co., 58 Hun, 389 ; Friedman v. Dry Dock, E. B. & B. R. R. Co., 11 N. Y. Supp. 429 ; 110 N. Y. 676.

Nor can we say, as matter of law, on all the evidence, that the driver of the car did all that a prudent man should have done; that is a question on which different conclusions might be reached by different men on hearing all the evidence on that point, and, therefore, it should have been submitted to the jury. Friedman v. Dry Dock, E. B. & B. R. R. Co., 11 N. Y. Supp. 429 ; 110 N. Y. 676.

The motion for a new trial on the minutes was, in our judgment, properly denied. As above stated, plaintiff’s freedom from contributory nogligence and the negligence of the defendant were questions that belonged to the jury to determine. There were frequent contradictions in the testimony of the witnesses on either side, and some discrepancies in the testimony of the various witnesses on the part of the defendant. The jury have decided in favor of plaintiff’s contention, after the law bearing on the case had been laid down by the learned trial judge in a charge to which no exception was taken, and we can see no reason for interfering with the verdict.

Neither of the exceptions to the refusals to charge as requested seems to us to be well taken or of sufficient importance tp call for any discussion.

For the reasons above stated, we think that the judgment and order denying motion for a new trial should be affirmed, with costs.

Clement, Ch. J., concurs.

Judgment and order affirmed, with costs.  