
    Michael McGuire, as Administrator, etc., of Michael McGuire, Jr., Deceased, Respondent, v. The Third Avenue Railroad Company, Appellant.
    
      Negligence—what questions of negligence and of contributory negligence should be submitted to the jury.
    
    In the case of an injury, sustained by reason of a collision with a cable car, the questions whether the deceased saw the car at the moment he attempted to cross the street or should have seen it; whether the attempt to cross the street just as a brewery wagon got out of the way was a mere error of judgment or a piece of foolhardiness; whether it was even an error of judgment; whether the grip-man on the car saw or should have seen the deceased in time to prevent the accident; whether he caused an undue or violent propulsion of the car at the critical moment, were all held to be proper questions for the jury.
    Appeal by the defendant, The Third Avenue Railroad 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 25th day of February, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of New York, and also from an order entered in said clerk’s office on the 20th day of March, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    This action was brought to recover damages alleged to have been sustained by reason of the negligence of the defendant which caused the death of the plaintiff’s intestate. ■
    
      W. N. Cohen and Albert H. Walker, for the appellant.
    
      R. P. Harlow and M. P. O' Connor, for the respondent.
   Per Curiam :

Upon a "careful review of the evidence, we are of opinion that this case was properly submitted to the jury. We cannot find as matter of law that the deceased was guilty of contributory negligence. Nor can it be said that there was no evidence of negligence on the defendant’s part. The situation was a peculiar one. The •deceased had exhibited unusual prudence in his preliminary movements. He looked carefully about him and up and down before attempting to cross the avenue. He saw the car going up town and he stopped and waited for it to pass. He then proceeded, but his progress and view were obstructed by a brewery wagon which passed betwéen him and the car coming down town. This down-town car slowed up to let the brewery wagon pass. As it passed the gripman started the car up suddenly. The deceased then found himself in a critical position. He was undoubtedly startled and thrown somewhat off his balance by the sudden and precipitate start of the cable car. He hesitated and jumped back; but it was too late, and he was struck by the rapidly advancing car. Whether thé deceased saw this car at the moment he attempted to cross, or should have seen it; whether the attempt to cross, just as the brewery .wagon got out of the way, was a mere error of judgment or a piece of foolhardiness ; whether it was even an error of judgment, were all questions of fact proper for the consideration of the jury. So as to the conduct of the gripman. Whether he saw, or should have seen, the deceased in time to prevent the accident-; whether he caused an undue or violent propulsion of his car at the critical moment, were questions fairly for the jury. It is upon the - whole impossible to sustain the defendant’s contention that there was neither evidence of the deceased’s freedom from contributory negligence nor were there circumstances from which such freedom could be inferred. It is equally impossible to sustain the contention that there' was absolutely no evidence from which the gripman’s negligence could properly be found or inferred.

There are no exceptions of any importance; none which call for consideration. •

The judgpient should be affirmed, with costs. '

Present-Wan Brunt, P. J., Barrett, Rumsey, O’Brien and Ingraham, JJ.

Judgment affirmed, with costs.  