
    James Mitchell, Appellant, v. The Third Avenue Railroad Company, Respondent.
    
      Negligence—injury to a pedestrian by being run down by a street car—when the . questions of negligence and, contributory negligence are for the jury.
    
    In an action to recover-damages for personal injuries sustained by the plaintiff at the intersection of Third avenue and One Hundred and Eighth street in the city of New York, in consequence of being struck by one of the defendant’s street cars which was coming down Third avenue from the north on the westerly track, it appeared that the accident took place upon a dark night, but that there was an electric light on the corner. The plaintiff, who was walking westerly on the north crosswalk of One Hundred and Eighth street, before stepping from the curbstone upon the crosswalk, and again just as he stepped upon the easterly track, looked up and down Third avenue, but saw no headlight or other indication of the approach of the car, and heard no gong or bell. A passenger on the car which struck the plaintiff testified that the car was going fast at the time of the accident and that the motorman was looking towards the rear; that he did not ring the bell and that the headlight must have been dim; that the last the witness saw of the plaintiff the latter was on the track and the car was ten or twelve feet from him, and that he was struck just as he was stepping over the westerly rail.
    
      Held, that it was error for the court to dismiss the complaint, and that the questions of the defendant’s negligence and of the plaintiff’s contributory negligence should have been submitted to the jury.
    Van Brunt, P. J., and McLaughlin, J., dissented.
    Appeal by the plaintiff, James Mitchell, 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 20th day of December, 1900, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.
    
      Sumner B. Stiles, for the appellant.
    
      Eugene Treadwell, for the respondent.
   Laughlin, J.:

On the night of the 8th of May, 1898, at one-thirty a. m., plaintiff was walking alone, smoking a cigar, going westerly on the northerly sidewalk of One Hundred and Eighth street, and while passing over the northerly crosswalk of Third avenue was struck by a street car coming from the north on the westerly track and sustained injuries to recover for which this action is brought. ' The night was dark, but there was an arc electric light on the corner. Plaintiff testified that he looked up and down Third avenue before stepping from the curbstone onto the crosswalk, and again justas he stepped upon the easterly track and that he saw no headlight or other indication of the approach of a car and heard no gong or bell. Plaintiff said that his eyesight was pretty fair; ” that there was no obstruction to his view up the avenue ; that the avenue was lit up on both sides with gas ; that he could see the block to One Hundred and Ninth street and objects on it clearly, and then says that when he looked around uptown he guessed it was about one-half the block that he saw ; could not say how far he saw up the block and did not know whether he saw the length of the block or not; that as he was upon the west track and about to step off on the west side the car struck him ; that he did not see the car until it struck him ; that he did not look again after stepping upon the easterly track and that the car after striking him ran at least a block before stopping. A passenger on the downtown car which struck plaintiff, who was seated near the front looking out the window, testified in substance that the motorman did not ring the bell; that the headlight must have been dim ; that he did not think there was much of a headlight, but was not positive about it; that the motorman was looking toward the rear of the car at the time of the accident ; that the car was going fast, at the regular speed for that time of night; that the car threw plaintiff some distance and did not stop for some distance after striking him; that he saw plaintiff coming across the easterly track and at that time the car was quite a distance away, two or three houses from the corner; that the car was going at such a rate of speed that it did not take it long to' get to where plaintiff was ; that the car was lighted inside; that it was a dark night and you could see pretty plainly, but not a great distance ; that, the last he saw of plaintiff he was on the track and the car was about ten or-twelve feet from him, and he was struck just as he was stepping over the westerly rail. Another passenger, who was on the rear platform, testified that the car was lighted; that he did not notice about the headlight, but that he did not hear any bell.

We think this constituted aprima facie case for submission to the jury. It cannot be said as matter of law that plaintiff, assuming his testimony to be true, omitted' any precaution that a man of ordinary care and prudence would have taken to discover the approach of a street car. (Costello v. Third Ave. R. R. Co., 161 N. Y. 317; Conley v. Albany Railway, 22 App. Div. 321; Schwarzbaum v. Third Ave. R. R. Co., 54 id. 164; 60 id. 274; Legare v. Union Railway Co., 61 id. 202; Frank v. Met. St. Ry. Co., 58 id. 100; Lawson v. Met. St. Ry. Co., 40 id. 307; De Gram v. Erie R. R. Co., 49 id. 29.) According to his evidence he diligently exercised his faculties of sight and hearing without avail.. The rule as to when the court may and may not decline to submit the question of contributory negligence to the jury is well stated in Kettle v. Turl (162 N. Y. 255) as follows: “ The question of contributory negligence is generally one of fact, to be determined by the jury, and it is not within the province of the court. It is only where it clearly appears from the circumstances or is proved by uncontroverted evidence that the party injured has, by his own acts or neglect, contributed to- the injury that the court can determine that question. The cases are exceptional where it can be held that contributory negligence was so conclusively established that nothing was left, either of inference or of fact, to be determined by a jury.”

Quite recently the Court of Appeals has clearly pointed out the distinction between the authority of the court to set aside a verdict as against the weight of evidence and to nonsuit or direct a verdict without submitting the facts to the jury. (McDonald v. Met. Street Ry. Co., 167 N. Y. 66.) In that case Judge Martin, writing for the court, says : “ While in many cases, even where the evidence is sufficient to sustain it, a verdict may be properly set aside and a new trial ordered, yet, that in every such case the trial court may, whenever it sees fit, direct a verdict and thus forever conclude the parties, has no basis in the law, which confides to juries and not to courts the determination of the facts in this class of cases.

“We think it cannot be correctly said in any case where the right of trial by jury exists and the evidence presents an actual issue of fact that the court may' properly direct a verdict. So long as a question of fact exists, it is for the: jury and not for the- court. . If the evidence is insufficient or if that which has been introduced is conclusively answered, so that, as a matter of law, no question of credibility or issue of fact remains, then the question being one of law, it is the duty of the court to determine it. But whenever a plaintiff has established facts or circumstances which would justify a finding in his favor, the right to have the issue of fact determined by a jury continues, and the case must ultimately be. submitted-to it.

“ The credibility of witnesses, the effect and weight of conflicting and contradictory testimony, are all questions of fact and not questions of law. If a court of review, having power to examine the facts, is dissatisfied with a verdict because against the weight or preponderance of evidence,- it may be set aside, but a new trial must be granted before another jury so that the issue of fact may be ultimately determined by the tribunal to which those questions are confided. If there is no evidence to sustain an opposite verdict, a trial court is justified in directing one, not because it would have authority to set aside an opposite one, but because there was an actual defect of proof, and, hence, as a. matter of law, the party was not entitled to recover.”

Even the judicially prescribed rule of care and caution on the part of a pedestrian approaching a steam railroad highway crossing at grade does not require evidence of more care than was exercised by plaintiff to carry a case to the jury. (Lewin v. Lehigh Valley R. R. Co., 165 N. Y. 667; for facts, see 52 App. Div. 69; Henavie v. N. Y. C. & H. R. R. R. Co., 166 N. Y. 280; Zwack v. N. Y., L. E. & W. R. R. Co., 160 id. 362; Judson v. Central Vermont R. R. Co., 158 id. 597.) The courts have taken judicial notice- of the fact that ordinarily careful people look and listen before crossing a steam railroad track, and so all are held to an observance of this duty as matter of law. It is not, however, the province of the court to say that a party looking must see, or listening, must hear at his peril. The traveler is only bound to make such reasonable efforts to see and hear as would be made by a careful and prudent man under like circumstances. (Shaw v. Jewett, 86 N. Y. 616; Greany v. Long Island R. R. Co., 101 id. 419, 424, 425.)

This mandatory duty of looking and listening is not applied with the same rigidity to pedestrians crossing (at intersecting stre'ets) .street railroad tracks laid in the public streets. Street cars can be readily stopped or the speed slackened, and it is the duty of a street railroad company to have its cars under control as they approach the crossing of intersecting streets. At such points they have no greater rights than the pedestrians crossing their tracks. (Dunican v. Union Railway Co., 39 App. Div. 497.) If the testimony of plaintiff is to be believed, and his credibility is for the jury (Williams v. D., L. & W. R. R. Co., 155 N. Y. 158), he certainly exercised some degree of care and caution. Whether his failure to discover the approach of the car was owing to the location of the electric light and atmospheric conditions, or to the fact that there was not a bright headlight upon the car, or to the fact that he is mistaken or untruthful in his testimony with respect to looking, were all questions of fact for the jury, and they may not be disposed of .as matters of law without invading the province of the jury.

The evidence clearly warranted a finding of negligence on the part of the defendant. It tended to show that the car was propelled at a very rapid rate of speed over an intersecting street without any signal or warning, and, at least, without a bright headlight, and the motorman, instead of having his car under control and keeping an outlook for those lawfully traveling the street, had his face turned ■toward the rear of-the car.

The judgment should be reversed and a new trial granted, with •costs to appellant to abide the event.

Pattebson and Hatch, JJ., concurred; Van Bbunt, P. J., and McLaughlin, J., dissented.

J udgment reversed, new trial ordered, costs to appellant to abide event.  