
    Patrick Little, Appellant, v. The Third Avenue Railroad Company, Respondent.
    
      Negligence—walking behind one car, and in front of another approaching on the next track.
    
    In an action to recover damages for personal injuries, it appeared that the defendant operated a double-track street railway on Third avenue in the city of JSTew York; that between two and three o’clock on the afternoon of the day of the accident the plaintiff attempted to cross from, the easterly to the westerly side of Third avenue at its intersection with Thirteenth street; that as he approached the easterly or north-bound track he saw a north-bound car approaching; that he also saw a south-bound car approaching from a point about forty feet distant; that he waited until the north-bound car, which had stopped to take on and let off passengers, had started; that after this car had proceeded far enough to allow him to do so, he passed in the rear of it, and that just as he stepped upon the south-bound track he was struck and injured by the south-bound car.
    There was no evidence that the plaintiff, after he stopped to let the north-bound car go by, and before he stepped upon the south-bound track, looked to see whether the south-bound car was approaching or took any precautions whatever for his own safety.
    
      Held, that the complaint was properly dismissed;
    That while the defendant was bound to move its cars with care, it was equally incumbent upon the plaintiff to exercise care to prevent an accident, and that he had failed to do so,
    Patterson and Laughlin, JJ., dissented.
    Appeal by the plaintiff, Patrick Little, 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 12th day of January, 1903, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.
    
      Jacob Fromme, for the appellant.
    
      Bayard H. Ames, for the respondent.
   McLaughlin, J.:

On the 15th of January, 1900, between two and three o’clock in the afternoon, the plaintiff, then about thirty-nine years of age, attempted to cross defendant’s track at the intersection of Thirteenth street and Third avenue, and in doing so was struck by one of its south-bound cars and seriously injured. He brought this action to recover damages therefor upon the ground that the same were caused solely by defendant’s negligence. At the trial at the close of plaintiff’s testimony the complaint was dismissed and' he has appealed.

The plaintiff testified, in substance, that as he approached the easterly tracks of the defendant he looked and saw a north-bound car approaching, and that he also then, or shortly thereafter, noticed a south-bound car approaching, which was about forty feet away; that he waited until the north-bound car, which stopped at this point to take on or let off passengers, had started and proceeded far enough to allow him to pass in the rear of it, which he did, and just as he stepped upon the south-bound tracks he was struck and injured. The witness Cohen testified, and he was corroborated in some respects by the witness Nesi, that the cap which struck the plaintiff was in sight when plaintiff passed the southeast corner of Thirteenth street, and that when it struck him it was running at a rapid rate of speed, but was stopped within a few feet after the collision occurred. There was absolutely no evidence to the effect that the plaintiff looked to see whether a south-bound car was approaching, or that he took any precautions whatever for his own safety after he stopped to let the north-bound car go by and before he stepped upon the southbound tracks. Under such circumstances, I do not see how the trial court could do otherwise than dismiss the complaint. It is apparent that if the plaintiff had exercised any care whatever after the north-bound car had passed and before he attempted to step upon the south-bound tracks, he would have seen the ear which struck him,' and thus the accident would have been avoided. Cohen could see the car approaching, and manifestly the plaintiff could if he had looked, as the accident occurred in the middle of the day, and there was nothing so far as appears to obstruct the plaintiff’s vision or distract his attention. Of course he was just as much obligated to look out for his own safety as the defendant was to prevent his being injured. (Jackson v. Union Ry. Co., 77 App. Div. 163; Johnson v. Third Ave. R. R. Co., 69 id. 247.) Both parties had an equal right to the use of the street at this place, and while the law requires the defendant to move its cars with care, to the end that persons crossing the street may not be-in jured, it also requires such persons to exercise an equal amount of care to prevent being injured. If a person using the street fails to-exercise this care and is injured, he cannot recover from the defendant for the injuries sustained, inasmuch as his own negligence has contributed to it, and this is precisely what occurred in this case. The plaintiff carelessly and heedlessly stepped upon defendant’s tracks, and taking into consideration all of the testimony which he-offered, it is apparent that had he exercised the care referred to he-would not have been injured.

The judgment appealed from, therefore, must be affirmed, with costs.

Van Brunt, P. J"., concurred; Patterson and Lattghlin, JJ. dissented.

O’Brien, J. (concurring):

In this case, as in the recent cases of Schwarzbaum v. Third Ave R. R. Co. (60 App. Div. 274); Schoener v. Met. St. Ry. Co. (72 id. 23), and Pelletreau v. Met. St. Ry. Co. (74 id. 192), which resulted in decisions of this court adverse to the defendants therein, the plaintiff, after passing behind a car upon one track was struck, as lie-proceeded on his way across the street, by a car on the other track. In the Schwarzbaum Case (supra) it was said in the opinion : “ The plaintiff and her husband had their view obstructed until they were almost upon the uptown track, because of the south-bound car which had just passed. Moreover, the night was dark and rainy and they were underneath the elevated structure, and though the plaintiff says they proceeded carefully, looking up and down, the north-bound caréame upon them swiftly and without warning, killing the husband, who was a little ahead, and nearly striking the plaintiff.” Therein it further appeared that the injured man was found on the opposite side of the car. Here, on the contrary, it appears that the-plaintiff was proceeding, not on a dark, misty night, but in broad daylight; that after being shut off from view of the south-bound track for some time, while he waited for the uptown ear, which had stopped, to start and move on its way, he proceeded immediately over, walking fast, and was struck just as he reached the first rail.In that case also there was evidence that, when between the tracks, the plaintiff and her husband looked up and down, and though they did not perceive that the car was at hand, this was somewhat explained by the fact that the night was dark and misty and, had ■they seen the headlight, it would have been difficult to approximate its distance. Here the plaintiff testified that he looked and did not see, but it does not appear when he looked, nor why, if he looked just after leaving the uptown track, he did not on a clear day and with a straight track see the car.

In the Pelletreau Case (supra) the accident occurred in the daytime, but the day was rainy, and the plaintiff had alighted from a north-bound car with several companions, one of whom preceded her behind the stationary car and over the south-bound track and crossed safely to the other side. The plaintiff, knowing her friend was a few feet in advance of her, and hearing no warning, proceeded across and, though she looked, her vision was obscured to some extent by the north-bound Car, the space between the tracks at this point being very narrow. Here the plaintiff had seen no one precede him, and thus had not that reason for concluding that, had a car been at hand, a signal would have been given before he started over, nor so far as appears had he any reason for thinking he could cross in safety.

In Schoener v. Met. St. Ry. Co. (supra) the plaintiff was driving across the Bowery and saw two cars coming south, and concluded that he could cross in front of the one on the further track, which struck him, and though it appeared that the vision of the motorman of that car was obscured by the overlapping of the other car, it was held that the jury might find him negligent in not anticipating that vehicles might emerge upon his track, and that in the judgment exercised by the plaintiff in proceeding, he was not, as matter of law, guilty of contributory negligence. Here there is nothing to show that the plaintiff saw the car and judged that he would be able to cross in safety. It is true that he says: “ The car that hit me was about forty feet away when I first saw it.” But to this he adds: “ I was standing on the crossing, on the south crossing, on the downtown side: I was waiting to get across the avenue.” He then says he waited to let an uptown car pass, and that the center of it stopped in front of him while passengers were getting on or off. He also states that the uptown car, when he first saw it, was forty feet.away. If the plaintiff made a misstatement in saying that the downtown car was forty feet away, then there is no evidence as to what distance it was when he saw it, or that he saw it at all, his subsequent testimony being that, though he looked, he did not see it. If he did not make a misstatement, and the downtown car was forty feet away when he was standing on the crossing waiting to let the uptown car pass, which had stopped immediately in front of him, and thereafter when it went on he started to cross, it is evident that if the downtown car, which he saw, had not already passed, then he had every reason to believe it would be directly in his path. His testimony, however, is that after the uptown car started he went right behind it,” and when he got on the other side of the track he was hit, and that he had “ started to walk across fast.” There is, therefore, no basis, as there was in the Schomer case, for concluding, with respect to the conduct of the plaintiff, that he erred, if at all, merely in the exercise of judgment.

In this respect, also, the present case differs from Handy v. Met. St. Ry. Co. (70 App. Div. 26), where, as here, the appeal was from a judgment of nonsuit. There it appeared that the plaintiff’s intestate was crossing in the evening in front of a rapidly approaching south-bound car on Third avenue, which was well lighted, and there was nothing to obstruct his vision or that of the motorman. There was evidence that he “ was turned a little up the street ” and seemed to be looking in that direction,” and that when struck he had passed the middle of the track and was about to step off the westerly rail. The car was traveling fast and no effort was made to stop it, or warning given, and it proceeded some ninety feet after hurling the man to the west of the track. It was held that the subject of the negligence of the motorman and of the plaintiff’s intestate was for the jury, and that it was error to dismiss the complaint. Here, however, as already pointed out, there was nothing upon which the jury might even base a finding that the plaintiff was guilty of error of judgment, rather than of contributory negligence; and the absence of such facts or evidence is its distinguishing feature. The case of McDonald v. Met. St. Ry. Co. (167 N. Y. 66), cited and relied upon in Handy v. Met. St. Ry. Co. (supra), has no application, as the plaintiff failed to prove any facts from which the jury could infer that the injuries received were caused solely by the defendant’s negligence.

I concur, therefore, in the conclusion reached by Mr. Justice McLaughlin, that the judgment entered on the dismissal of the complaint should be affirmed, with costs.

Laughlin, J. (dissenting):

I dissent on the ground that the testimony of the plaintiff was susceptible of the construction that he did not see the south-bound car; and also that after the north-bound car passed, he looked diligently by the rear of it north along the south-bound track before stepping upon that track, and did not discover the south-bound car, the speed of which was so excessive that it came upon him before he had an opportunity to exercise his right of passing over the track along the line of the crossing, he having arrived at the crossing a sufficient time in advance of the south-bound car to enable him to do so in safety, if the motorman had the car properly under control.

Patterson, J., concurred.

Judgment affirmed, with costs.  