
    Sarah De Witt Thompson, as Administratrix, etc., of Virgil D. Thompson, Deceased, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence — injury to one crossing a street in daylight before a car—proof insuffi- ■ dent to establish negligenee or the absence of contributory negligence — when proof of signals of approach of car is not important — assumption that motorman will control the car.
    
    In an action to recover damages resulting from the death of the plaintiff’s intestate, who was struck and killed by one of the defendant’s north-bound street cars at a street intersection in the daytime, it appeared that the defendant maintained two tracks at the point in question, the space between the two tracks being four and one-half feet wide; that when the intestate reached this space he stopped and looked in a southerly direction; that the car Which subsequently struck him was then eight or ten feet distant; that it was approaching rapidly, but that at this point it “slowed up,” and that as it did so the intestate proceeded; that the speed of the car was again increased, and that j ust as the intestate was about to step on the north-bound track he was struck by the car and received the injuries which resulted in his death. It did not appear that the intestate paid any attention to the car after it slowed up.
    
      Held, that the evidence was not sufficient to sustain á finding that the defendant was negligent or that the intestate was free from .contributory negligence; That, it appearing that the intestate saw the car, the question whether any signals of its approach were given was of no importance;
    That the intestate had no more right to indulge in the assumption that the motorman would so control the car as to permit him to cross the street in safety than the motorman had to assume that the intestate would keep out of the way of the car.
    O’Brien, J., dissented.
    Appeal by the defendant, Metropolitan Street 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 27th day of May, 1903, upon the verdict of a jury for $9,500, and also from an order entered in said clerk’s office on the 25th day of May, 19Ó3, dénying the defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 25th day of May, 1903, granting the plaintiff an extra allowance of costs.
    
      Charles F. Brown, for the appellant.
    
      Abram J. Rose, for the respondent.
   Mo'Laugi-ilin, J.:

The plaintiff, as the administratrix óf Yirgil D. Thompson, deceased, brought this action to recover the damages alleged to have been sustained by his widow and next of kin on account of his death, upon the ground that • the same was caused solely by the negligence of the defendant. She had a verdict, and from the judgment entered thereon and from an order denying a motion for a new trial defendant has appealed.

At the trial it appeared,, and the facts were uncontradicted, that the intestate about four o’clock in the afternoon on the 11th day of July, 1901, attempted to cross diagonally from the southwest to the easterly side of Broadway at its intersection with Eighth street, and in doing so was struck by one of the defendant’s north-bound cars and received injuries from which he died two days later. Only two witnesses, Coffin and Courtney, were produced who testified as to how the accident occurred. From their testimony, which is uncontradicted, it appears that the intestate obtained a transfer from a transfer agent who was stationed at the southwest corner of Broadway and. Eighth street, and then started to cross Broadway in a diagonal direction. The defendant at this point has two tracks on Broadway —: the one on the westerly side being used for cars going in a southerly, and the one on the easterly side for cars going in a northerly direction — the space between the two tracks being four and a half feet. When the intestate reached this space he stopped and looked in a southerly direction, and there was then approaching on the north-bound tracks a car eight or ten feet from him. The car was approaching rapidly, but at this point it “ slowed up ” and as it “ slowed up ” the intestate proceeded. The speed of the car was again increased and just as the intestate was about to step upon the . track he was struck by the side or the front end of the car, knocked down and received the injuries which resulted in his death. It did not appear that he paid any attention to the car after it “ slowed up,” but proceeded to cross, probably assuming that because it had slowed up it would come to a stop and he could cross the street in safety. This being the condition of the evidence at the close of the plaintiff’s case, and at the close of the trial, we think the defendant’s motions to dismiss the complaint should have been granted, and the exceptions taken to the denial, of such motions necessitate a reversal of the judgment.

The plaintiff, of course, was not entitled to recover unless she ' produced' evidence sufficient to sustain a finding of the. jury that the injuries to her intestate were due to the negligence of the defendant and that his negligence did not contribute thereto. This she failed to do. (Lynch v. Third Ave. R. R. Co., 88 App. Div. 604; Little v. Third Ave. R. R. Co., 83 id. 330; Jackson v. Union Ry. Co. 77 id. 161; Johnson v. Third Ave. R. R. Co., 69 id. 247.)

Whether or not a signal of the approach of the car was given is of no importance because the evidence is conclusive upon the point that the intestate saw the car. He looked at the car ” and must have known that it was approaching, because it was then only eight or ten feet from him. Nor is there any force in the suggestion that he had a right to assume, because the car had commenced to slow up} that it would be so controlled that he could cross the street in safety. It was the duty of the motorman as the car approached the crossing to have it under reasonable control (Hoyt v. Metropolitan St. Ry. Co., 73 App. Div. 249), but this did not give the intestate the right to assume that it would come to a stop, or that its speed would be so controlled as to give him time to pass over the tracks without being injured. He had no more right to indulge in this assumption, under the facts set out in the record, than the motorman had to indulge in the assumption that the intestate would keep out of the way of the car. The intestate, of course, was as much obligated to look out for his own safety as the defendant was to prevent his being injured. The obligation resting upon each was mutual in this respect. Both had an equal right to the use of the street at this point; and while it was the duty of the defendant to move its car with care, to the end that the intestate would not be injured, he was also required to exercise the same care to prevent his being injured. We are of the opinion that the record failed to establish the negligence of the defendant, or the intestate’s freedom from negligence.

We have examined the other questions raised, but do not deem them of sufficient importance to be here considered.

It follows that the judgment and order appealed from must be reversed and a new trial ordered, with costs to appellant to abide the event.

Van Brunt, P. J., Ingraham and Hatch, JJ., concurred; O’Brien, J., dissented.

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