
    Lena Solomon, Respondent, v. The New York City Railway Company, Appellant.
    (Supreme Court, Appellate Term,
    May, 1906.)
    Street railways — Operation — Actions: Sufficiency of evidence — Contributory negligence; Instructions — Degree of care, Contributory negligence.
    Where the plaintiff in an action against a street railway company for personal injuries testifies that, while at the southeast corner of 110th street and Lexington avenue preparing to cross the avenue to the southwest corner, she looked to the right and to the left and there was no car in sight, and it appears from the evidence that there was at that very time a car at the north cros-iing within fifty feet of her and that her failure to see it and her continuing her progress across the avenue without again looking to see if it were safe to cross were the primary cause of her accident, and where neither the plaintiff nor her witnesses state what part of the car hit her and it does not appear whether the car struck her or whether she not having seen it in time walked against it, and, further, she testifies she was struck on the left side while she was going west by a car coming from up town, she has failed to show affirmatively that she was free from contributory negligence.
    It was error for the court to charge the jury that it was the duty of the motorman to use the highest degree of care in preventing the accident as he was only bound to exercise ordinary care.
    It was error to charge the jury that, if they found the motorman aid' not have the car under control that the injuries were caused by defendant’s negligence, the plaintiff was entitled to recover, as it assumed that plaintiff was entitled to recover without reference to her freedom from contributory negligence.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, ninth district,- borough of Manhattan.
    William E. Weaver, for appellant.
    R. P. Elson, for respondent. •
   Davis, J.

This action is brought by Lena Solomon to recover damages for personal injuries. She recovered a judgment from which this appeal is taken. The plaintiff states that she is sixty-five years of age and before the accident was always a strong, healthy woman; that at ten o’clock on the morning of January 12, 1906, she was standing on the southeast corner of One Hundred and Tenth street and Lexington avenue, preparing to cross the avenue to the southwest .corner; that while standing there she looked to the right and to the left and there was no car in sight; that the road was clear; that she then started across- the street and does not know what happened to her; that she was knocked down by the car. She remembers that she was struck on the left side by a car that came from uptown and was thrown down. From the testimony of Noah Cornfield, called by the plaintiff, it appeared that he was a passenger on the car referred to by the plaintiff; that he was sitting ' on the east side of the car looking out of the front window; that he saw the plaintiff when she attempted to cross the avenue, and saw her all the while up to the time she received the injury. He states it to be his best judgment that the front of the car was about ten feet from the plaintiff when the motorman began to apply the brake. On cross-examination this witness said that he believed the car stopped at the north side of One Hundred and Tenth street; that he noticed the plaintiff, Mrs. Solomon, when he was on the other side of the street' and she was about fifty feet from where he was. He could not tell positively whether or not the car had started up at that time. He states that the car might have been one-third across One Hundred and Tenth street when the plaintiff reached the north-bound track, and she was then moving across. Another passenger was called by the plaintiff, but he threw no light upon how the accident happened. Both of plaintiff’s witnesses say that no gong was sounded. It appears from this evidence that the plaintiff proceeded across the avenue upon the assumption and in the belief that the road was clear and that there was no car in sight. She was evidently satisfied with the precaution taken by her as she stood upon the curb before starting to cross. It is quite clear from the testimony of the witness Cornfield that there was a car at the north crossing and within fifty feet of the plaintiff at the very time she says that the road was clear with no car in sight. Her failure to see the car and her continuing her progress across the avenue, without again looking to see if it were safe to cross, were doubtless the primary cause of her accident. Obviously, upon this testimony the plaintiff failed to show affirmatively that she was free from negligence contributing to the accident. More•over, neither the plaintiff nor her witnesses state what part of the car hit the plaintiff. It is impossible to tell from the evidence whether the car struck the plaintiff or whether the plaintiff, not having seen the car in time, walked against the car. The confusion oh this point is added to by the testimony of the plaintiff to the effect that she was struck on the left side while she was going west by a car coming from uptown. It also appears that the jury were allowed to guess as to the permanency of the plaintiff’s injuries, basing their conclusions on highly speculative testimony of the physician, to which proper objection and exception were noted. Furthermore, at plaintiff’s request the court charged the jury that it was the duty of the motorman, in crossing the street from side to side, to have his car under control to prevent injury to a person crossing the street and also to use the highest degree of care in preventing an accident. This was not a proper instruction as to the degree of care to he exercised by the motorman. He is bound to exercise ordinary care, not the highest degree of care. .Again, at plaintiff’s request, the court charged that, “ if you find that the defendant’s servant in charge of that car did not have that car under control, that the injuries were caused by the defendant’s negligence in this case, the plaintiff is entitled to recover.” This charge was erroneous in that it assumes that the plaintiff was entitled to recover simply by showing that the injuries were caused by defendant’s negligence without reference to plaintiff’s freedom from contributory negligence. The defendant rested at the close of plaintiff’s case.

For the reasons stated the judgment appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.

Gildebslebve and Oliitch, JJ., concur.

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