
    Deegan v. Capel.
    
      (Supreme.Court, General Term, Second Department.
    
    July 2, 1889.)
    CONTUIBUTOKY NEGLIGENCE.
    Where, in a suit for damages for causing the death of plaintiff’s intestate through the negligence of defendant’s employé, the driver of a coach, the evidence shows that deceased, being between the coach and a street-car, was not knocked down by the car, but was seen tumbling under the wheels of the coach, the question of the negligence of the driver and the contributory negligence of deceased are questions for the jury.
    Appeal from circuit court, Kings county.
    Mary Deegan, as administratrix of William Deegan, deceased, sued William Capel. The complaint was dismissed after the evidence for plaintiff was introduced, on motion of defendant, and plaintiff appeals.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      James C. Church, for appellant. Man & Prothroe, for respondent.
   Dykman, J.

This is an action for the recovery of the damages resulting from the death of William Deegan, alleged to have been caused by the negligence of the driver of a stage-coach in the employment of the defendant. The complaint was dismissed upon the trial at the close of the testimony on the part of the plaintiff, and the case comes to us on appeal from that judgment. The deceased was crossing Fulton street, in the city of Brooklyn, on the cross-walk leading to the City Hall. When he started to cross the street there was a street-railroad car coming down the track, and there was also a stagecoach going the same way, in the rear of the car, and between it and the sidewalk from which the deceased man came. The distance between the curbstone and the rail of the railroad was about 12 feet. The decedent crossed that space until he came within three feet of the track, and waited for the car to pass him, and from the time he was in that position the facts may as well be gathered from the testimony of the two witnesses who were examined upon the trial. Frederick Muns, a police officer says: “When the car reached the Crosstown Railroad tracks, which cross at the corner of the Citizen building, in front of the office, the horses of the stage were about at the tail-end of the car. As the car got a little further along, by the cross-walk which leads to the City Hall from the Citizen building, my attention was attracted by something tumbling. * * * Question. Right after you say you saw something tumbling between the car and the stage, what did you do next? Answer. The stage continued on, and, after the stage passed up about ten feet, my attention was attracted to somebody lying on the street cross-walk. I then ran over, and two or three gentlemen, with my assistance, picked him up, and brought him to the Citizen building. Cross-Examination. Question. The next time that you saw the old gentleman was when he lay upon the ground? Answer. Well, previous to that I saw something tumbling between the car and the wagon. On the moment I could not distinguish what it was. Q. Are you positive that you saw something between the car and the stage ? A. I don’t mean to say that I saw something between the car and the stage. I saw something tumbling underneath by the wheels of the stage, towards the center of the car; what it was I could not make out very well. ” James Mara, the driver of the car, was also examined, and testified as follows, among other things: “He was coming out. He was coming over from the sidewalk. He stood about three feet from the track, and I done this, [indicating] and he shook his head. When he started from the sidewalk I was about half a car-length from him. Q. After he shook his head, no, did you drive on—did you strike—him with the front of your car? A. Ho, sir; I could' not strike three feet outside of the track. I have only one rail to goon. I am positive of that.” This testimony showed that deceased was not struck by the car, and that he was seen tumbling underneath the wheels of the stage, and from these facts the inference was natural that he was knocked down and injured by the wheels of the coach. Such an inference being justifiable, the question of the negligence of the driver, and the contributive negligence of the deceased, were for the jury, upon all the facts, and the dismissal of the complaint was erroneous. The judgment should be reversed, and a new trial granted, with costs to the plaintiff to abide the event.  