
    James H. Rooks, an Infant, by Helena Knox, his Guardian ad Litem, Appellant, v. The Houston, West Street and Pavonia Ferry Railroad Company, Respondent.
    
      A Wayale rider may use the slot of a cable road—he need, not look behind him for ccvrs which give no signals —Laws 1890, chap. 568, §§ 163, 163.
    A person riding a bicycle may lawfully use the aperture existing between the rails of a cable road and in which the cable runs. A bicycle rider, proceeding in this way, is under no legal obligation to look behind him in order to detect the approach of a cable car, which gives no signal of its approach, the rumble and noise of which he hears only just as he is struck by it.
    
      Appeal by the plaintiff, James H. Books, an infant, by Helena Knox, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 5th day of March, 1896, upon a dismissal of the complaint directed by the court after a trial before the court and a jury at a Trial Term of the Supreme Court held in and for the county of New York.
    
      Clarence C. Ferris, for the appellant.
    
      Henry A. Robinson and Brownson Ker, for the respondent.
   Barrett, J.:

There was evidence sufficient to go to the jury that the plaintiff was knocked down by a cable car. He testified that he was upon the cable car track at the time of the accident. He was riding there upon his bicycle, and was utilizing the aperture between the rails which is provided for the cable, commonly called the “ slot.” “ When I got to Nineteenth street,” he testifies, “ there was a noise, the rumble of a cable car behind, and suddenly I was knocked down.” He added that he was familiar with the rumble made by a cable car; that it was a holiday; that the street was quiet at the time; that he did not see or hear any other vehicles, and that he distinctly heard the rumble and noise of a cable car behind him just as he was struck. This, under all the circumstances, was sufficient for the submission to the jury of the question whether the accident was or was not caused by a cable car.

There was also enough to go to the jury upon the main questions. The plaintiff was lawfully upon the track. (Laws of 1890, chap. 568, §§ 162, 163.) It is true it was a place of danger, and the plaintiff was bound to exercise corresponding care. Whether he did so was for the jury to determine. The trial court held him to be guilty of contributory negligence, as matter of law, because he failed to look back. No such duty was imposed upon him as matter of law. His primary duty was to look in front of him, indeed, to keep a good look out all around. But he could not ride upon his bicycle at all — certainly not with safety — and yet keep his head turned so as to observe what was going on behind. Whether his failure to observe the car at the time of, and under the circumstances surrounding the accident, amounted to contributory negligence, was, to say the least, a question for the jury. He certainly had a right to expect the usual warning in his rear. Had that been given he would of course have been bound to protect himself by getting off the track and making way for the approaching ear. Here, however, there was no warning. The gong was not sounded. There was no whistle, cry or notice of any kind. The plaintiff was proceeding lawfully and with a justifiable sense of security. The first that he heard was the rumble and noise of the cable car. Immediately thereafter he was struck and knocked down.

The case upon the facts should have been submitted to the jury, and the judgment must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred.

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