
    Sarah F. Beers, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      NegligenceNa passenger alighting from and passing behind' a can, struck by a car appro'aehing on the adjoining track—under what circumstances the passenger is not guilty of contributory negligence.
    
    A persqn who, after alighting from a north-bound car at a street intersection, waits until she has an unobstructed, view of the south-bound track for half a block, and seeing no car proceeds slowly to cross the street car tracks, which occupy a space of fifteen feet, without looking again to the. northward, and who, when she reaches a point between the rails of the south-bound track, is struck by a south-bound car traveling at the rate of at least fifteen miles an . hour without giving any warning of its approach and which does hot slacken its speed until within ten feet of such person, is not, as a matter of law, guilty of contributory negligence.
    The injured person, under the circumstances mentioned, has a right to proceed across the tracks in reliance upon the assumption that any approaching car will be under the control of the motorman, so that it can be readily stopped, or at least that some warning will be given of its approach in time to enable her to escape danger.
    Upon the trial of an action brought by such person against the street railway company to recover damages for the injuries sustained by her, a request to charge that the plaintiff was guilty of contributory negligence if she stepped upon the track when the car was only from four to ten feet away, is not a correct statement of the law applicable to the case, becadse the plaintiff having looked and ascertained that the track was clear for a sufficient distance to . warrant a reasonable person in believing that it: was. safe to-cross,, it cannot be said, as a matter of law, that the plaintiff was bound to see the car if it was only ten feet away from her when she stepped upon the track.
    Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of March, 1904, upon the Verdict of a jury for. $1,000, ánd also from an order entered in said clerk’s Office on the 25th day of March, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      Bayard H. Ames [Henry A. Robinson with him on the brief], for the appellant.
    
      William F. Walsh, for the respondent.
   Miller, J.:

The plaintiff, an old. lady, seventy years .of age, was injured at .the intersection of Twenty-seventh street- and. Fourth avenue, borough of .Manhattan, by being struck by one of defendant’s southbound cars, while attempting to cross the street after having alighted frpm a, north-bound ear.,. The defendant urges as ground for reversal of the judgment ip favor of the plaintiff, first, .that the proof failed tc- show negligence on the part of the defendant,.or freedom ,frd,m contributory negligence- on the part of the plaintiff; second, that the verdict is against the weight of evidence, axiá,thi?'d, that the court erred in refusing to charge as. requested by the defendant;-and in the admission of certain evidence.

There was a sharp . conflict between the parties, as to the circumstances leading up to the accident,. The proof on the part pf the plaintiff, if believed by the jury, warranted them in finding that; the plaintiff, .after alighting, from the north-bound car, waited until she had an unobstructed .yiew of the opposite track as far northward as , the, center,of the block between Twenty-seventh and Twenty-eighth streets.;, that the car causing the injury was then just entering the block across Twenty-eighth street; that she looked to the northward and did not.see any approaching car ; that .deéming-it safe to " attempt the crossing, she. then proceeded slowly to cross the defendant’s tracks, going in the roadway provided for foot passengers and vehicles alike by those engaged in the construction of the subway; that she did not again look to the northward; that when she had reached a point somewhere between the rails of the south-bound track she was struck by the fender of the car approaching from the north, thrown over, striking her head against the stanchion at the corner of the platform of the car, and then thrown a distance of twenty or thirty feet in a southeasterly direction onto the northbound track; that the motorman was propelling the car at the rate of at least fifteen miles an hour, without slackening its speed until within ten feet of the plaintiff, and without sounding the gong or giving any warning, and that after the collision the car went, one-hundred and thirty or one hundred and forty feet before stopping. The distance between the two tracks of the defendant is five feet six inches, and the distance between the rails of each track is four feet four inches.

The defendant’s theory of the accident, that the plaintiff upon . alighting, without stopping to look or listen, immediately passed around the rear of the north-bound car, and, instead of being struck when between the rails of the south-bound track, negligently walked against the side of the car,' was fairly submitted to the jury upon such a conflict of evidence as that we cannot say its finding is against the weight of evidence.

The evidence clearly made the defendant’s negligence a question of fact for the jury, and it cannot be' said as a matter of law that the plaintiff was, guilty of contributory negligence. The place where she alighted must have been, according to the evidence, approximately fifteen feet from the westerly rail of defendant’s tracks. It cannot be said as matter of law that a person fails to observe the caution of an ordinarily prudent person when, at the intersection of two city streets, upon alighting from a car and waiting until he has a clear view for Ú space of at least half a block, upon looking and seeing no car, he undertakes to cross a space of fifteen feet, relying upon the assumption that any approaching car will be under the control of the motorman, so that it may readily be stopped, or at •least that some warning will be given of its approach in time to enable him to escape danger. The rights of the parties were equal, and the same degree of care was imposed upon both. The reasons urged by the appellant as ground for a reversal of this judgment would require that the plaintiff should have looked in the direction from which the car colliding with her came at every instant of time while attempting to cross the defendant’s tracks, but this is not the rule, .even in the case of highway crossing cases, where the rights and obligations of the parties are entirely different. A person who looks and sees no car approaching for a sufficient distance to warrant an ordinarily cautious person in believing that it is safe to attempt a crossing, has the right to proceed, relying upon the assumption that the street railroad company will respect his equal right of passage, and in the absence of any additional facts calling for the exercise of greater vigilance, cannot- be said to be negligent as a matter of law if he does • not thereafter look in the. direction from which danger happens to come. The case of Dolfini v. Erie Railroad Co. (178 N. Y. 1) has not changed the law of negligence as urged by the appellant. That case simply applied to the peculiar-facts shown to have existed the rule' that the testimony of a witness, when contradicted by indisputable physical facts, was not sufficient to present 91 question for a jury and the case of Reed v. Metropolitan Street Railway Co. (180 N. Y. 315), also relied upon by the appellant, would have been in point if the jury had found that the accident occurred in the manner claimed by the defendant. Counsel for the appellant, with great industry, has apparently collated in his brief all of the cases in this State, as well as-many in other jurisdictions, bearing upon accidents at crossings. Without discussing these authorities, it is sufficient < to' say that we find none, when considered in the light of the point actually decided, in conflict with the views here expressed.

At the close of the charge, after charging at the request of the defendant that the plaintiff was guilty of contributory negligence if she failed to look after her view ceased- to be obstructed by the car from which she had alighted, the court was requested to charge “ that irrespective of the speed at which the car came down the avenue, that if she stepped in front of that car from four to ten . feet, and it was impossible for the motorman to stop his car within that distance, that then she was guilty of contributory negligence and the verdict must be for the defendant.” It is not quite clear What; W0.. intended by,this; request, but .assuming, .that it-,meant; that the ¡plaintiff -wag guilty pf. contributory negligence, .if- , she:. stepped upon the track;whenzthe ear was only fypin £o,ur: tp. teufeet asyay, then it was not -a correct statement of the htw applicable to, this case* because having looked and ascertained that the. way. was clear for .a .sufficient,distance t,o; warrant a reasonable person.,in..believing it was, safe.-; to cross,, it.cannot be said, as a matter. pf.daw, .that she was. hound to seethqpar if it. was only fen feet from her when she Stepped upon the-.track.

, The court was.-requested to charge: “I ask your Honor to charge 1&he; juryffhat jf shPiWentdntq the. side.of this; cay: at¡ ,d¡^,e f.dashb,pard ¡after the fendpf hadpassed, her in safety, she was .guilty pf ppnti'ibutory negligence and. flic verdict must be for the defendant,” . The court replied: “ I decline to charge that, except; as covered by the charge already made.”. . TMs request had been substantially covered in the main charge.. The court had clearly and concisely stat,ed,the claims of the. two.parties,, plainly telling the jury that ,if,the; defendant’s theory was correct the. plaintiff could not.recover,; ¡and in stating.the theory pf- th.e defendant the,.court;said...“that the , old lady escaped the. fender, in, front of this car. and deliberately walked into, the-car, .s.o:that whatever injury.§he. received was,vby.yoaspn, of her; pwp carelessnesSj, the result of her, own carelessness in, not faking proper heed tp where, she .was going, the car,:coming along" with nothing to obstruct.her view of this car,, so.far as shown, after the uptown car had gone on uptown.” The. court also said: “ Of course, if. this hidy camp around behind the.other.car and walked right in front of his.car or right into his car almost at the time of his seeing her, why fhen the defendant would not be to blame (because you cannot expect impossibilities of a motonnan), providing hp,had hig ear.under control and .was going at the time at a reasonably .slow rate pf, .speed.” ... Also:, “ She ha:d alighted from one. car,.passed,arpimd fQ-an other railroad trapk. She should use the reasonable pare-of-, a, reasonably prudent person under the ciiy ' cumstanees...,. You,must decide whether she did or did not.,; If you find that she did not use such care, then your verdict will be for the defendant, because she must show that she was careful, reasonably careful in attempting to cross over this ¡downtown .railroad trapk,’ ¥e. think the request which was declined, so; far as it'embodied a correct principle of law applicable fb this case, was fully covered by the court in its charge,

. The exceptions to the rulings as to. the testimony of Dr. Bussell present no ground for reversal.- - : , :

The record does not show that objection was made to the" granting of an additional allowance.

The judgment and order should be affirmed, with costs,......

Present —- Hirschberg, P. J., Woodward, Jerks,- Rich and Miller, JJ. ..

Judgment and order unanimously affirmed, With costs.  