
    DANIEL BELTON, Plaintiff and Respondent, v. EDWARD W. BAXTER, and others, Defendants and Appellants.
    Bun-over cases. Negligence in.
    1. Bights of foot passengero in crossing streets.
    
    When, at the time a foot passenger commences to cross a street, it is proper for him so to do, with reference to approaching vehicles, he is not obliged to turn back to avoid an approaching vehicle, if that vehicle can, by reasonable, care avoid him; nor is he obliged to stop and allow the vehicle to pass in front of him, but may continue on his way and pass in front of the vehicle, provided that by so doing he does not place himself in a position where the vehicle cannot, by proper care, avoid him. In such cases it is the business of the driver to stop and allow the foot passenger to pass.
    A. Accordingly held, that when a foot passenger, about to cross the Second-avenue to the east, along the upper crossing of Fourth-street, saw a railway car coming past, and then about midway between Third and Fourth-streets followed by a cart directly behind it, his passing in front of the car, which had slacked up, was not negligence contributing to an injury inflicted by being run over by the cart which had been drawn out and driven up along the right of the car.
    2. Negligence. What is, in the driver of a vehicle following a car. His duty.
    
    A. In turning out and passing the car he should go cautiously, carefully and slowly, and exercise a higher degree of caution than ordinary, so as to be able to avoid (even by stopping, if necessary) running over foot passengers who may be obscured from his view by being in front of the car.
    Before Monell and Jones, JJ.
    
      Decided February 4, 1871.
    The only questions argued upon this appeal, arose upon the refusal below, to dismiss the complaint.
    
      The action was to recover damages for personal injuries sustained by the plaintiff, through the alleged negligence of the defendants’ servant.
    The motion to dismiss was on the ground that the evidence showed concurring negligence of the plaintiff, and did not show any negligence on the part of the defendants.
    These questions were left to the jury under instructions from the court as to their effect upon the verdict.
    The following facts appeared from the evidence. Plaintiff was walking upon the northerly side of Fourth-street, towards the East river. When he came to within a few feet of the Second-avenue, he saw the railway ear approaching, and then about midway between Third and Fourth-streets, and the defendants’ cart directly behind the car. Both the car and the cart were going fast. As the car reached the lower crossing of Fourth-street, it slackened to let off a passenger, and the plaintiff hastened to get over upon the upper crossing, and had passed in front of the car horses, when he was struck by the defendant’s cart; the driver of which had upon the slacking up of the car drawn out to the right, and driven on up the avenue, having the car between himself and the plaintiff". The rate of speed of the cart was not clearly established. One witness, beside the plaintiff, said it was going “ very fast.” The driver put' it at a fast walk; but his cousin, who was with him, said it was at the rate of “four or five miles an hour.”
    The learned judge charged the jury among other things, as follows':
    “I wish to say one Word here in respect to what I deem to be the rights of persons using the streets, either with vehicles or on foot. There has been no distinction, no law, no rule established by which there has been a preference given to one class over another. It is the equal duty of the driver of a vehicle, in going through the streets, to take care to avoid doing injury as well to foot passengers, as also to vehicles, and in reference to crossing streets the foot passenger and the driver of a vehicle have equal rights, and the driver of a vehicle coming on an angle with a passenger must look out and take care to avoid him. In this case, according to the plaintiff’s testimony, he came to the curb-stone and saw the car approaching. He had a right to cross there. He had a right to go in front of this vehicle and cross at that time, if he did not place himself in a position where this vehicle by proper care could not avoid him. He had as much a right to cross there as the vehicle had to go on in the other direction. It is the point of time that governs these things. I hold as a principle of law, that if I attempt to cross Broadway, or any other crowded thoroughfare, I am not obliged to turn back to avoid a vehicle, if that vehicle by reasonable care can avoid me. It is the business of the driver to stop and allow me to pass. It is not my business to turn and go back for the purpose of avoiding him ; I am there by right, and my right is paramount to his, because I am there first in point of time.”
    
      Mr. Paine, for appellant.
    
      Mr. S. A. Walker, for respondent.
   By the Court.—Monell, J.

The right of the plaintiff to cross the avenue, and.the relative duty of drivers of vehicles, in respect to such rights, was correctly and forcibly stated to the jury by the learned justice before whom the action was tried.

This right of foot passengers to travel upon the public highway, and especially to use the crossings, has been frequently asserted by this court, and should be, sometimes at least, recognized by the drivers of vehides, who practically and habitually regard foot passengers as mere intruders upon and obstructors of the highway, and who can be run over with impunity (Baxter v. Second-Avenue R. R. Co., 3 Robt. 511 ; Barker v. Savage, 1 Sweeny, 288).

The question involving the defendants’ negligence was put to the jury for them to determine. There was some evidence—sufficient, I think, to require it to go to the jury—which renders it improper for us to interfere with the verdict.

Having conceded to the plaintiff his right to make the crossing at the time, in the manner, and under the circumstances, it very properly became a question with the jury, whether the driver of the cart, following up the car as closely as he had, was not bound, in turning out from the track, to exercise a much higher degree of caution than he appeared to have done, to avoid running over or running down foot passengers who were rightfully upon the cross-walk.

It is evident, that had the defendants’ driver, when he drew out from behind the car, gone cautiously, and carefully,—in other words, gone slowly on,—until the car had passed, the plaintiff would not have been injured. The jury were authorized by the evidence, to find, and we must assume that they did find, that the cart was, at the time of the accident, being driven at an imprudent and careless rate of speed, thereby causing ■the injury to the plaintiff.

The judgment should be affirmed.

Note.—Barker v. Savage was reversed by the court of appeals (45 N. Y. 191).

It is submitted that such reversal does not necessarily conflict with the principles above laid down. The court of appeals in that case construed the charge of the court below as laying down the propositions, that a foot passenger on entering upon a crossing was not bound to use as much care as a co-equal right of way in himself and vehicles would be required, and that after entering upon the crossing he was relieved from exercising any care or caution for his safety, and held such propositions erroneous. The charge in the above case refers to the rights of foot passengers, abteb having properly entered on its crossing, and does not relieve from all care or caution for his safety.  