
    Gazelle Axelrod, as Administratrix, etc., of David Axelrod, Deceased, Respondent, v. New York City Railway Company, Appellant.
    First Department,
    November, 1905.
    Negligence — passenger killed while passing behind car and crossing parallel track—burden to show care by intestate — proof required of personal representative.
    A passenger alighted at night from a north-bound car, and passing immediately behind the rear end of the car to the south-bound'track was struck and killed. The car was lighted and there was nothing to obstruct intestate’s vision, and the danger was apparent.
    
      
      Held, that the plaintiff was bound to show that the intestate was himself" "• free from negligence, .and because of the total failure to do so, the.complaint should have been dismissed.
    
      It seems, that less evidence of freedom from contributory .negligence by the intestate is required of a personal representative than of a surviving person, but some evidence of care must be given. The -mere fact of death is insufficient. Patterson, J.,. dissented. '
    Appeal by the defendant, the New York City Railway Company, 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 '9th day of December, 1904, upon the verdict of a jiiry for -$5,000, and also from an order entered, in said clerk’s office on the 9th day Of December, 1904, denying the defendant’s motion for a new'trial made upon the minutes.
    
      R. R. Rogers, for the appellant.
    
      Alexander B. Greenberg, for the respondent.
   McLaughlin, J.:

There is nothing in the record -before us which- shows,, even inferentially, that- the intestate exercised any care whatever before attempting to cross defendant’s tracks. On this point there is no dispute as to the facts.

On Avenue A in the city of New York the defendant operates two lines of cars, the tracks upon which the cars going in a northerly direction are run being on the easterly, and those going in a southerly direction on the westerly side of the avenue and the distance between them is a little over five feet., On the evening of March 28, 1904,-the intestate was a passenger on a north-bound car. He alighted at Ninetieth street, the car stopping for that purpose at 'the southerly crosswalk. -After leaving thenar he immediately-passed around the rear end of it and attempted to cross the tracks upon which the southerly cars were run- and in doing so was struck .and killed by á. car going in that direction. Whether he had succeeded in getting onto tlie track or was just in the act of doing so, did not appear. The only evidence bearing upon -his act after leaving the north-bound car was the testimony of the plaintiff’s witness Walter, who. stated: “ 1 first seen .the man when he started to walk around . the north-bound car, as I take for granted he got off. There was a north-bound car there, at the time. The north-bound car when I first saw it was stopped at the southwest corner of Ninetieth Street. * * * I didn’t see the man do anything but walk from the time I saw him. He walked westerly; in a westerly direction, straight. There was nothing unusual about his gait; nothing peculiar about it, not that I noticed. He was near the south-bound tracks when he was struck. I could not say he had crossed any part of the south-bound track. * * * The man was walking an ordinary walk. I could not say whether it was a fast or slow walk. A man’s ordinary walk. I did not see him look in any direction before he attempted to cross. He did not have anything in his hands.”

There was some conflict between the plaintiff’s witness and those called by the defendant as to just what happened immediately prior to the time when the deceased was struck by the car. But adopting the testimony of plaintiff’s witness — and his is the most favorable to her — Ido not see how this recovery can be sustained. The testimony does not show that the intestate exercised any care whatever. The car was lighted, there was nothing to obstruct his vision, the danger was apparent, and had he used his eyes, as he was bound by law to do, it must have been evident to him.

It may be conceded that there was sufficient evidence to go to the jury on defendant’s negligence, but that does not aid the plaintiff, because she was obligated to prove, before she was entitled to recover, that the intestate was himself free from negligence, and in this respect she utterly failed. ■ Defendant’s motions to dismiss the complaint at the close of her case and at the close of the trial should have been granted and the exceptions taken to the rulings denying such motions must be sustained. It is true that less evidence is required of a personal representative as to contributory negligence of a decedent than would be required in case of a surviving person. (Schafer v. Mayor, 154 N. Y. 466.) But in such cases some evidence must be given from which the jury can find the intestate did exercise the care required by law. Here, as already indicated, there was nothing which would justify such finding unless it be the death of the intestate, and that is insufficient. An inference cannot be drawn from a presumption that he would exercise care and prudence in regard to his own life and safety. ( Wiwirowski v. L. S. & M. S. R. Co., 124 N. Y. 420.)

Numerous authorities might be ’cited both in. the Gourt .of Appeals and in this court showing upon the factp here presented that plaintiff was not entitled to recover. The following, however, are sufficient : Perez v. Sandrowitz (180 N. Y. 397); Reed v. Metropolitan Street R. Co. (Id. 315);. Pinder v. Brooklyn Heights R. R. Co. (173 id. 519); Little v. Third Ave. R. R. Co. (83 App. Div. 330 ; S. C. affd., 178 N. Y. 591).

I am of the opinion that the judgment’and order, appealed from ; should be reversed, and a new trial ordered, with costs to appellant to abide event. ■

. O’Brien, P. J., Ingraham and Laughlin, JJ.,. concurred; Patterson,. J., dissented.

Ingraham, J. (concurring):

I concur in Mr. Justice McLaughlin’s opinion. I- think this, casé is controlled by Reed v. Metropolitan Street R. Co. (180 N. Y. 315), where Judge Bartlett, delivering the opinion of the court, says A person passing behind the rear of a car "and stepping onto the track where a car may be approaching from the opposite direction, is bound to satisfy himself that the way is clear. It is apparént that the slightest caution on the part of this plain-, tiff would have advised him of the'presence of the approaching car and avoided this accident.” The evidence is uncontradicted that the deceased walked behind a north-bound car from which he had alighted, stepped onto the south-bound track,"walked leisurely, and was struck by. the south-bound car. This south-bound car was lighted; nothing to prevent the deceased from seeing it, if he had looked, and the conclusion is, therefore, irresistible that he passed from behind the rear of the car from which he had alighted on the south-bound track without looking or having - seen the approaching car, walked directly in front of it, he being, in either case, guilty of contributory negligence.

. Laughlin, J., concurred.

Patterson, J. (dissenting):

The plaintiff, .as administratrix of David Axelrod, recovered a judgment against the defendant in an action brought for damages caused by'the death of her intestate under the following circumstances: On the evening of March 28, 1904, David Axelrod was a passenger on one of the defendant’s north-bound cars on Avenue A in the city of New York. He left the car near Ninetieth street. According to an ordinance of the city of New York then in force the car stopped below the south crosswalk at Ninetieth street and the decedent alighted at the proper place. After descending from the car he walked around the southerly end of it to cross to the west side of Avenue A. As he was crossing and while he was on or very near the westerly track he was struck by a south-bound car and killed. It appears by the testimony of one Walters that he saw the intestate after he had passed around the back of the north-bound car and was between the east and west-bound tracks. This witness also testified that at that time he saw a car coming down town, being the same car which struck the plaintiff, in the block between Ninety-first and Ninetieth streets. From the testimony it would appear that when this witness Walters saw the south-bound car and the plaintiff’s intestate passing behind the. north-bound car, the former car, according to the measurements given in the testimony, was at least eighty or eighty-five feet north of the point at which the decedent was struck. The car from which he alighted had stopped at the place required by the ordinance. The car which struck him was proceeding at a great rate of speed and no signal was given and no bell was rung, and it seems to be admitted that negligence on the part of the motorman in charge of the defendant’s car was proven.

But it is claimed that there is no evidence to show that the plaintiff’s intestate was free from contributory negligence. There is no positive evidence that he either stopped or looked or listened. It is settled in the law that in a case such as this less evidence is required of a personal representative as to contributory negligence of a decedent than would be required in the case of a surviving person. (Schafer v. Mayor, 154 N. Y. 472, citing cases.) Nevertheless the plaintiff’s intestate was bound to exercise reasonable care and if there is any evidence on this subject of contributory negligence, it was properly submitted to the jury. There may be,cases in which it appears from the whole evidence that even -if an intestate failed to look and listen that would not convict him of contributory negligence if he, under all the circumstances, would have been justified in attempting to cross the track. In such cases contributory negligence, as matter of law, cannot be attributed. There is evidence here to show that when the intestate undertook to pass to the west side of the avenue, the car which struck him was from ninety to one hundred'and twenty-five feet away. Walters testified: I had seen the south-bound,car coming down from the ferry before the north-bound car'came to a stop to let the deceased off. The southbound car when I first saw it was well up the block, well up the block when I first saw it; the block between Ninety-first and Ninety-second Streets; more than a block away from where the accident happened when 1 first saw that car.” .The witness further said: “I want the gentlemen of the jury to understand that when the north-bound car, the one on which the deceased had been a passenger, came to a' stop, the south-bound car, being the one that after-wards, struck him, was over a block away; over a block or about a block. And I want the gentlemen to understand that while the deceased was walking across the north-bound track and the space between the two tracks, this car traveled a distance of over a block — the car which afterwards struck, him, traveled a distance of over a block while he was walking that short -distance, about a block.”

I think it was for the jury to say, undhr these circumstances, whether it was negligence on the part of the plaintiff’s, intestate to cross without looking when the car was a block away from him when he started to cross. If he had seen that car he would have been authorized to believe that it was under the control of the motórman. We do not know whether the plaintiff did or did not lookj but had he looked aiid had he seen a car a block away when he passed behind the ear from which lie' alighted, it was for the jury to say whether it was contributory negligence in attempting to cross. In tiffs respect the case of Monck v. Brooklyn Heights R. R. Co. (97 App. Div. 447) is in point. Here it cannot be said, as matter of law, that had the plaintiff looked and had he. seen the approaching car he would have been chargeable with contributory negligence in proceeding to cross the tracks.

So far as the question of excessive damages is concerned, f think there is enough in the record to support the verdict.

I think the judgment should be affirmed.

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