
    John M. Provoost, as Ancillary Administrator with the Will Annexed of John Cumberledge Cautley, Deceased, Appellant, v. International Railway Company and Crosstown Street Railway Company of Buffalo, Respondents.
    Fourth Department,
    May 1, 1912.
    Railroad—negligence — collision with passenger attempting to pass behind car after .alighting — ordinance forbidding car to pass standing car — contributory negligence.
    It is gross negligence for a street surface railroad operating in a city to run a ear at the rate' of thirty miles an hour without sounding any signal past another car which is standing at a street intersection for the purpose of discharging passengers. Especially is this so where an ordinance of the city forbids one car to pass another which has' stopped- at a crossing to discharge or receive passengers until the latter car has started on its course and has cleared atleast twenty feet, etc.
    As a person alighting from said standing car may be presumed to have known of the city ordinance and had a right to believe that the railroad company would obey it, he cannot be charged with contributory negligence as a matter of law where, having alighted and while attempting to pass behind the car, he was struck and killed by a car coming in the opposite direction and driven with the gross negligence aforesaid, if it appears that he took the first opportunity to ascertain whether another car was approaching, but was unable to avoid it owing to its excessive rate of speed, etc.
    Appeal by the plaintiff, John M. Provoost, as ancillary administrator, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 15th day of April, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Erie Trial Term.
    The action was commenced on the 7th day of August, 1909, to recover damages for the death of plaintiff’s intestate which resulted, as alleged, solely because of defendants’ negligence.
    
      Vernon Cole, for the appellant.
    
      Dana L. Spring, for the respondents.
   McLennan, P. J.:

Plaintiff’s intestate, at about eleven o’clock on the morning of January 5, 1908, alighted from one of defendants’ Main street cars, north bound, at the crosswalk on the north side of Bryant street, at the intersection of Bryant street and Main street, in the city of Buffalo. The defendants at this point have two tracks. The north-bound cars run upon the easterly track while the westerly track is used for the south-bound cars. The .space between the inner rails at this point was 4.4 feet. While attempting to cross defendants’ tracks, using the crosswalk, a few feet in the rear of the car from which he had just alighted, the intestate was struck by a south-bound car which approached from the nórth at a rate of speed of about thirty miles an hour, without ringing the bell or giving any other Warning and without slackening its speed, and this notwithstanding the north-bound car was still standing at the corner to discharge and take on passengers. The deceased was hit and thrown to the pavement in front of the southbound car, passed under its fender and was pushed a distance of about Pro feet before ■ the car was stopped. He was then unconscious and was removed to a hospital, where he died Within á half horn’ without regaining consciousness. The deceased was fifty-eight years of age, in .perfect health and possessed of all his faculties.

Ho witness was produced who saw the deceased alight from the north-bound car, but from the testimony of those who were with him earlier in the day and knew of his intention to visit members Of his family who lived near Bryant street, the inference is warranted that he had just alighted from the north-bound car, and was attempting to cross the street upon the crosswalk in the rear of the standing car.

We have no difficulty in reaching the conclusion upon the facts shown that the defendants were guilty of gross negligence in running one of their cars at a speed approaching thirty miles an hour past another car which was standing at a street intersection for the purpose of discharging passengers. In the exercise of ordinary care the defendants should have used caution in so passing. In addition to that there was at. this time in force in the city of Buffalo an ordinance which provided:

“ Ho driver or other person having the charge and Control of any street railway car ■ within the City of Buffalo shall permit or allow such car to pass any other car at any crossing for the discharge or reception of passengers until such standing car shall" have started on its course and cleared at least twenty feet. Hor shall any driver or other person in charge of such standing car put the same in motion while a car on the parallel track is approaching within fifty feet.”

The point to which defendants’ counsel directs most of his argument, however, is that of contributory negligence. One witness testifies that he first saw the deceased at about the center of the north-bound tracks proceeding west; that while he still had one foot on the north-bound tracks he was seen to turn his head to the right and almost at the same instant to throw up his hands and attempt to take a step backward, but that he was hit by the approaching car before he had retreated at all. This testimony is corroborated by the other witnesses, some of whom were in the car which struck the deceased. From this it would seem that the deceased took the first opportunity he had to ascertain whether a car was approaching from the north, but that owing to the excessive rate of speed at which the car was running he did not have time to avoid it.

The'.trial court held that under these circumstances the deceased was guilty of contributory negligence. We think, however, that it cannot be so held as a matter of law, but that it is for the jury to say whether under all the circumstances the deceased exercised the care which he should. He had the right to expect that the defendants would operate their car under such a situation as this in a reasonably careful manner, even if it were not brought to a full stop as required by the ordinance. Had defendants’ car been proceeding at a moderate rate of speed under such circumstances the deceased might have had ample opportunity to protect himself. We think that while the deceased was called upon to exercise due care to discover whether a car was approaching from the north, yet he was not called upon to exercise the extraordinary degree of care which would be necessary in such a situation to avoid a street car traveling at a speed so excessive under the circumstances here shown.

Further, it cannot be assumed that the deceased was ignorant of the ordinance referred to. He had the right to believe that the defendants would not violate such ordinance. That, of course, would not authorize him to proceed blindly, without the exercise of any care at all, but in view of the ordinance and of the fact that he did look at his very first opportunity, we think it cannot be said as a matter of law that he was guilty of contributory negligence. The jury should he allowed to pass upon that question as well as that of the defendants’ negligence.

It is urged, however, that the case of Reed v. Metropolitan St. R. Co. (180 N. Y. 315) is decisive of this appeal. The case of Maynard v. Rochester Railway Co. (136 App. Div. 212) is also claimed to he controlling here, The facts in Reed v. Metropolitan St. R, Co. were somewhat similar to those in this case, and some statements in the opinion seem to give force to respondents’ contention. An examination of the record in that case, however, shows that the car which struck the plaintiff there was proceeding at not to exceed two miles an hour, and that the motorman rang the gong continuously in approaching and passing the standing car. It is, therefore, apparent that the exercise of the slightest degree of care by the plaintiff in that case would have enabled him to avoid injury. The case of Maynard v. Rochester Railway Co. was reversed upon the facts as well as upon the law. This appears clearly in the opinion, and is also shown by the further fact that a motion was subsequently made in this court by the plaintiff in that case to amend the decision so as to show that the reversal was upon questions of law only. This motion was denied. (143 App. Div. 957.)

We think neither of those cases is controlling here. The Court of Appeals has sustained a recovery in cases where the facts were similar to the case at bar. In Pelletreau v. Metropolitan St. R. Co. (74 App. Div. 192; affd. without opinion, 174 N. Y. 503) a similar state of facts Was shown and a verdict for the plaintiff was rendered. It there appeared that the cars were propelled by cable power, and the maximum speed obtainable was seven miles an hour. The evidence disclosed, we think, no greater degree of care on the part of the plaintiff there than is inferable from the facts in this case as to the conduct of the deceased. The recovery was sustained by the Court of Appeals.

In McGreevy v. Buffalo Railway Co. (9 Misc. Rep. 726; affd. without opinion, 145 N. Y. 621) a quite similar state of facts was presented. The evidence as to the degree of care exercised by the plaintiff’s intestate in that case was less satisfactory than in the case at bar, and the evidence as to the speed of the approaching car was somewhat in conflict, being estimated at from two to twelve miles an hour by the different witnesses. The Court of Appeals sustained a recovery for the plaintiff in that case.

As before stated, the record in this case shows that the south-bound car was proceeding at a rate approaching thirty miles an hour; that the gong was not sounded nor any other warning given. The ordinance of the city of Buffalo required the defendants to operate, their cars in a very careful manner under such circumstances, and it'may be presumed that the deceased knew of such ordinance and that he had a right to believe that the defendants would obey it. The evidence as to the care exercised by the deceased presented a question of fact for the jury as to whether the deceased exercised the care which an ordinarily prudent person should under such circumstances.

In the case of Craven v. International R. Co. (100 App. Div. 157) this court considered a situation quite similar to the care at bar, involving the duty of the defendant under the ordinance referred to above, and the question of contributory negligence was held to be one of fact for the jury.

We conclude that the judgment appealed from should be reversed and a new trial granted, with costs to appellant to abide event.

All, concurred; Spring-; J., not sitting.

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