
    Anna Velthusen, as Administratrix, etc., of Harry Velthusen, Deceased, Respondent, v. Union Railway Company of New York City, Appellant.
    First Department,
    July 11, 1912.
    Railroad—negligence — death of pedestrian struck while crossing tracks — charge — last clear chance — verdict against weight of evidence — evidence —freedom from contributory negligence.
    Where, in an action to recover for the death of plaintiff’s intestate, who was struck by a street ear while crossing defendant’s tracks, there is no evidence to show that the deceased took any precaution for his own safety, or that when he started to cross the track, or indicated an intention to do so, the motorman could have prevented thé collision, it is error for the court to instruct the jury that “If under all the circumstances in the case, the jury find that the motorman had the last clear chance to avoid the accident, that in such a case it is immaterial whether or not the intestate was guilty of contributory negligence,” and. a verdict for the plaintiff is against the weight of evidence.
    The last clear chance doctrine does not apply unless the character of the accident is such that it can fairly be said that the negligence of the injured party was not its proximate cause.
    An instruction that “ Where the person dies as a result of the injuries, thus rendering it impossible for the giving of testimony by the decedent, inferences may be indulged from-all the facts in the case to the effect that the intestate was free from contributory negligence,” is erroneous where, there was an eye-witness to the accident, since the rule only applies where there is no eye-witness.
    Appeal by the defendant, Union Railway Company of New 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 New York on the 12th day of January, 1911, upon' the verdict of a jury for $20,000, and also from an order entered in said clerk’s office on the 4th day of January, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      Bayard H. Ames, for the appellant.
    
      Daniel P. Hays, for the respondent.
   McLaughlin, J.:

The plaintiff’s intestate, between eight and nine o’clock on the evening of November 24, 1901, was struck by one of the defendant’s cars at the intersection of Westchester and Union avenues, and so injured that he died a few days later. This action is in negligence to recover the damages alleged to have been sustained by the widow and next of kin. Plaintiff had a verdict of $20,000, and from the judgment entered thereon, and an order denying a motion for a new trial, defendant appeals.

The trial court, at the request of counsel for the plaintiff, to which an exception was taken, charged the jury that “If under all the circumstatices in the case, the jury find that the motorman had the last clear chance to avoid the accident, that in such a case it is immaterial whether or not the intestate ' was guilty of contributory negligence.” I am of the' opinion that this was error and necessitates a reversal of the judgment. There is no. evidence that when the deceased started to cross the uptown track, or indicated an intention to do so, the motorman could have prevented the collision. There is some evidence that the motorman increased the speed of the car after crossing the intersection of the avenues referred to, but there is nothing to show that the motorman saw the deceased, or by the exercise of ordinary care should have discovered the perilous position in which he had placed himself. The deceased, when first seen, was between the uptown and downtown tracks. The distance between these tracks is five feet. The distance between the westérly and easterly rails of the uptown track is a little over four feet. He was struck just as he was leaving the easterly rail of the uptown track,' and from the time when he was first seen until he was struck he traveled at an ordinary walk. The car could not have been running at a very great rate of speed because, during the same time, it traveled at most double the distance that the deceased did. So that, if he were negligent in going upon the track when the car was so near as to render the act dangerous, then such negligence cannot be regarded as so remotely connected with the accident as to make the rule laid down in the charge applicable. The rule of law stated does not apply unless the character of the accident is such that it can fairly be said that the negligence of the injured party was not its proximate cause. (Rider v. Syracuse R. T. R. Co., 171 N. Y. 139; Bambace v. Interurban St. R. Co., 188 id. 288.)

I am also of the opinion that the court erred in giving the jury the following instructions: “Where the person dies as a result of the injuries, thus rendering it impossible for the giving of testimony by the decedent, inferences máy be indulged from all the facts in the case to the effect that the intestate was free from contributory negligence.” This instruction permitted the jury to infer that the intestate was free from negligence, because, being dead, he was unable to testify. It is true, less proof is required as estabhshing freedom from negligence in death cases than where a person injured is able to testify; but, in death cases, it must be shown either by direct evidence or from surrounding circumstances that the deceased exercised the care which the law requires. (Baxter v. Auburn & Syracuse El. R. R. Co., 190 N. Y. 439; Wieland v. D. & H. C. Co., 167 id. 19.) Besides, I do not think this rule applies, because there was an eye-witness to the accident, and the relaxation of the rule is only when there is no eye-witness. (Seidman v. Long Island R. R. Co., 104 App. Div. 4.)

Furthermore, I think the verdict is against the evidence. There is nothing to show that the deceased took any precautions whatever for his own safety. The car was lighted, and had he looked he must have seen it. The truth is, as it seems to me, that he stepped right in front of an approaching car and in this way the unfortunate accident happened. (Zucker v. Whitridge, 205 N. Y. 50.)

The judgment and order appealed from, therefore, are reversed and a new trial ordered, with costs to appellant to abide the event.

Ingraham, F. J., Laughlin, Clarke and Scott, JJ., concurred.

Laúghlin, J. (concurring):

I concur, but am of opinion that there is no rule or doctrine of “last clear chance” as charged.

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