
    Henry Reens, Respondent, v. The Mail & Express Publishing Co., Appellant.
    (New York Common Pleas
    General Term,
    November, 1894.)
    The fact that a person crossing a street fails to observe an approaching wagon by which he is injured does not impute contributory negligence to him as matter of law, as the duty of looking both ways is not imposed by law upon a person crossing a street»
    A failure of the defendant to deny that the driver of the wagon causing the inj ury in question was in its employ, with evidence of the driver that he was employed by defendant and the fact that the wagon bore defendant’s name, is sufficient to take the question of ownership and. of defendant’s liability to the jury.
    In an action for personal injuries, evidence as to plaintiffs habits as to drinking is immaterial.
    The fact that one party has given immaterial evidence does not authorize the other party to do so.
    Appeal from a judgment entered upon a verdict and from an order denying a motion for a new trial.
    Action for personal injuries occasioned by negligence.
    
      William Irwin, for appellant.
    
      Hdgar I. Wathan, for respondent.
   Bischoeb, J.

The plaintiff alighted from a street ear and sought to reach the sidewalk. When in the act of crossing the street from the track to the curb he was struck by a wagon in the control of defendant’s servant and sustained injuries for which damages are here claimed.

Appellant’s argument for a reversal on the facts appears to proceed upon the mistaken theory that, as between plaintiff and the defendant’s driver, the sole duty of care in avoiding the accident in question rested upon the former when attempting to cross the street.

The fact that plaintiff looked up and down the street, when beside the car after alighting, or, as he testified, “ on both sides of the car,” and did not see the wagon which, when he started to cross, came upon him at a great rate of speed, does not by any means suffice to impute contributory negligence as a matter of law. It is true that in the case of a person crossing a railway track negligence is predicable of that person’s failure to observe an approaching train when in plain sight, it being the legal duty of the individual, in such a case, to look botli ways before attempting to cross (Burke v. N. Y. C. & H. R. R. R. Co., 57 N. Y. St. Repr. 7 ; 73 Hun, 32); but a broad distinction is to be noted between these cases and such a one as the present, for the constantly impending danger, where the crossing of a railway track is attempted, is an essential element which is lacking in the case of a wayfarer crossing the street (Moebus v. Herrmann, 108 N. Y. 349), and it was, therefore, held in the above case that the duty to look both ways before crossing a street was not imposed as a matter of law upon the party crossing.

The case of Hamilton v. R. R. Co., 6 Misc. Rep. 382 ; 56 N. Y. St. Repr. 397, cited by appellant, does not apply to this action, for here there was no element of a close calculation, plaintiff not having seen the wagon approaching, and thus having assumed no voluntary hazard. The question of fact Avhether or not an act constitutes contributory negligence depends upon the circumstances of the particular case, and there was sufficient evidence in this case to call for determination by the jury upon the point in question. Plaintiff and defendant’s driver had equal rights in the street, and each could rely upon the observance by the other of the reciprocal obligations to avoid an accident which the law imposes. McManus v. Woolverton, 47 N. Y. St. Repr. 107 ; Anselment v. Daniell, 4 Misc. Rep. 144. The jury could, therefore, properly find that there was no contributory negligence, had it been satisfied that plaintiff had merely failed to anticipate a neglect of this duty upon the part of defendant’s servant (Anselment v. Daniell, 4 Misc. Rep. 144), which finding is not to be disturbed upon the evidence, although the jury might perhaps have also drawn contrary inferences from the facts testified to. Schwartz v. Wechler, 2 Misc. Rep. 67 ; 49 N. Y. St. Repr. 145.

The fact that defendant failed to deny that the witness Reagan, the driver of the wagon causing the injury, was employed by the corporation, taken with this witness’ testimony that he was employed by the Mail & Express ” for the purpose of delivering newspapers, together with the fact that the wagon in question bore the name of the “ Mail & Express,” furnished sufficient evidence to take the question of defendant’s ownership of the wagon, and of its liability under the rule respondeat superior, to the jury. Tuomey v. O'Reilly, etc., Co., 3 Misc. Rep. 302 ; 142 N. Y. 678 ; Wylde v. Northern R. Co., 53 id. 156 ; Seaman v. Koehler, 122 id. 646 ; Doherty v. Lord, 8 Misc. Rep. 227 ; 59 N. Y. St. Repr. 445.

Defendant urges that the exclusion of certain evidence, sought by it to be elicited with regard to plaintiff’s habits, was error, but there is found to be no force in the contention.

The only material issne upon the question of plaintiff’s drinking was as to his condition at the time of the accident.' Wliat his habits were was immaterial to that issue, and the fact that plaintiff had testified in his own behalf that it was not his habit to get drunk did not render the defendant’s evidence admissible as of right. Ro objection was taken to the admission of the plaintiff’s testimony in this regard, and a party has not the right to give immaterial evidence because his adversary has done so before him. People v. Dowling, 84 N. Y. 486 ; Starin v. Kelly, 47 N. Y. Super. Ct. 288 ; 88 N. Y. 418. In view of the evidence as to the extent and effect of the injury here sustained, we are unwilling to hold that the award of $5,100 damages is to be regarded as excessive.

The judgment should be affirmed, with costs.

Daly, Ch. J., and Pryor, J., concur.

Judgment affirmed, with costs.  