
    John Legare, as Administrator, etc., of David E. Legare, Deceased, Respondent, v. Union Railway Company of New York City, Appellant.
    
      Negligence—crossing a street railroad when an electric caris approaching — when the questions of negligence and, contmbutory negligence me for the jury.
    
    It is not contributory negligence as matter of law for a person to attempt to cross the track of a street railroad in the city of New York when an electric car is at such a distance that the motorman, if attending to his business and operating the car in a careful and prudent manner, could prevent it from running down such person.
    In an, action to recover damages resulting from'the death of the plaintiff’s intestate, the evidence tended to show that the deceased attempted to cross a street in the city of New York through which the defendant operated a street railroad when an electric car was two hundred feet distant; that when he reached the middle of the street the car was seventy-five feet away and that, as he started to cross, the motorman, who it was stated was under the influence of liquor, diminished the speed, but that when the plaintiff’s intestate had reached the middle of the track and the car was fifteen feet away,-the motorman increased its speed and ran over and killed him.
    
      Held, that the questions of the defendant’s negligence and of the intestate’s freedom from contributory negligence were properly submitted to the jury,, and that a judgment entered upon a verdict in favor of the plaintiff should be sustained.
    Appeal by the defendant, the 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 20th day of Hovember, 1900, upon the verdict of a jury for $3,000, and also from an order,, entered in said clerk’s office on the 13th day of December, 1900, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Qha/rles F. Brown, for the appellant.
    
      M. P. CP Connor, for the resnondent.
   Ingraham, J.:

There can be little doubt, I think, that if the evidence of the deceased’s brother is credible, the verdict of this jury was right and should be affirmed. This witness with the deceased started to cross the street through which the defendant operated its railroad. He testified that as he started to cross he looked up and down the street and saw coming from the east the car that ran over the deceased; that when he saw the car it was about two hundred feet distant; that by the time he got to the middle of the street the car had come within seventy-five feet, and then the two boys started to cross the track; that as they started the motorman slowed up the car, but while they were on the track the motorman turned on the current and then the car came towards them with accelerated speed; and that when the motorman put on the current the car was about fifteen feet from the boys, the deceased was in the center of the track, and the witness a step or two behind him. Through quite a severe cross-examination his testimony remained unshaken.

There is no question that if this motorman had been attending to his business he could have seen these boys crossing the track. He testified that he did see the deceased start to cross the track; and people some distance away saw the accident distinctly. It certainly was not negligence for the boys to start to cross the track when the car was seventy-five feet away, and it was gross and criminal negligence for the motorman when within fifteen feet of the boys to put on power additional and so increase the speed of the car as to run them down. Whether or not the plaintiff’s intestate could have got across the track if the power had not been put on was a question for the jury, and there was certainly evidence from which the jury could find that if the motorman had attempted to stop the car when it was within fifteen feet of the boys they could have crossed the track in safety. The testimony of the deceased’s brother was corroborated by a boy named Morrell, who testified that he saw these two boys crossing the track, one slightly ahead of the other, and that the car was about fifteen. feet from the boys when the motorman put on more speed; that the one brother jumped back and escaped while the other went forward and was struck; and that the car went about three car lengths before it was stopped. The ■ motorman was called as a witness and testified that he first saw the plaintiff’s intestate when he was about 'five or six feet from the track; that the boy started to run across the track in front of the car, and as he came on the track the car struck him. - The witness denied increasing the speed of the car, but testified that he tried to stop the car when he saw the boy starting' to run across the track. The place of the accident was not a crossing, but the motorman knew that people were in the habit of crossing at that particular place. The defendant also called the conductor of the car, who testified that at the time the motorman had been drinking and was under the influence of liquor. The evidence of this witness is of little value, as he admitted that he demanded money of the railroad company and that the railroad company had refused to pay him, and that when called as. a witness for the railroad company he testified to the drunkenness of the motorman without ever having communicated that fact to the railroad company. A witness called by defendant, who was a passenger on the car, testified that after the car passed the elevated structure the power was turned on. While the evidence of the motorman Was corroborated, the question of the defendant’s negligence was properly submitted to the jury.

Whether or not a person crossing a street in the city of -New York, occupied as most of them are by cars propelled by electricity or cable and often running at a high rate of speed, is guilty of contributory negligence where there is evidence which would justify a finding that the defendant was negligent must usually be for the jury, for in a.case where a car can be controlled so as to avoid running down a person crossing the track, it cannot be said that it was negligence, as a matter of law, for the person to attempt to cross the track. In many of the streets, during the busy portion of the day, these cars are running constantly within a few feet of each other, and if a person about to cross the track is to wait until no car is in sight, the track would be unpassable except at the risk of the pedestrian being guilty of contributory negligence. The right of a railroad company to use the public streets is conditioned upon the fight óf the public to also use them in the ordinary way,, and.no railroad company, has the right to so block the streets that the pub-lie are excluded from crossing them except at the risk of being run over. It cannot, therefore, be contributory negligence, as a matter of law, for a person to start to cross a track when the car is at such a distance that the motorman can prevent its running him down, if attending to his business and operating the car in a careful and prudent manner. ■

Assuming that plaintiff’s testimony gave a correct account of the occurrence, these boys, when they started to cross the track, saw this car approaching at a distance of seventy-five feet. The boys had a right to suppose, seeing this car seventy-five feet away and crossing the track in plain view of the motorman, that he would hold the car in control so as not to run them down. They certainly had a right to assume that he would not put on power to increase the speed of the car, and there was evidence that would justify a finding that if the motorman had checked the car when the boys started to cross the intestate could have crossed in safety. On the whole case the question of negligence and contributory negligence was for the jury.

As these seem to be the only questions presented by the defendant, the judgment and order appealed from should be affirmed, with costs.

Van Brunt, P. J., Patterson, McLaughlin and Hatch, JL, concurred.

Judgment and order affirmed, with costs.  