
    Richard Hamilton, Resp’t, v. The Third Avenue R. R. Co., App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed January 9, 1894.)
    
    1. Negligence—Contributory.
    When the contributory negligence of the plaintiff is an inevitable infer ence from the evidence, it is error not to dismiss the complaint.
    
      2. Same.
    An attempt to pass with a wagon in front of a cable car forty feet away, and approaching at a speed of ten miles an hour, is negligence as matter of law.
    Appeal from judgment on verdict and from order denying new trial. The opinion states the case.
    
      Wm. N. Cohen, for appl’t; Q-. M. Cescheidt, for resp’t.
   Pryor, J.

It is a question of extreme doubt whether the plaintiff gave sufficient proof of negligence on the part of the defendant to justify the submission of the issue to the jury. Conceding to him, however, a compliance with that condition of recovery, we are perfectly satisfied, upon a careful consideration of the evidence, that he not only fails to acquit himself of contributory negligence, but shows to demonstration that his injury was the effect of his own fault.

The action is for damages from a collision with defendant’s cable car; and the state of fact apparent on the close of the case is substantially this: Driving a provision wagon, plaintiff attempted to cross from the south to the north side of One Hundred and Twenty-Fifth street, between Seventh and Eighth avenues. From the west along the street a cable car was coming at the usual speed, that is about ten miles an hour. The day was bright and clear. Plaintiff was familiar with the street, and knew that cable cars were running on it. As he went over he saw the car coming, about forty feet away; nevertheless he persisted in his course. His witness testified: “I saw him (the plaintiff) just driving out, and the car was almost up to him. He started, and the car was coming very rapidly, and it came on him quicker than he supposed.”

The car struck the wagon on the hind wheel, and tilted it over; and thus the plaintiff sustained his injury. Before the plaintiff started over the street he was in á position of security. Seeing the car approach so rapidly and at so short a distance away, he took the chance of crossing in safety; and he must abide the result of his rash experiment. Helton v. Baxter, 54 N. Y., 245: Woodard v. R. R. Co., 106 id., 369, 374; 11 St. Rep., 169; Wendell v. R. R. Co., 91 N. Y., 420, 428 ; McClain v. R. R. Co., 116 id., 459, 465 ; 27 St. Rep., 549; Davenport v. R. R. Co., 100 N. Y., 632; McPhillips v. R. R. Co., 12 Daly, 365.

We are of opinion that the fact of the plaintiff’s contributory negligence is the inevitable inference from his own evidence; and that so, it was error to deny a dismissal of the complaint. Lee v. Troy, etc., Co., 98 N. Y., 115; Wirwirowski v. R. R. Co., 124 id., 420 ; 36 St. Rep., 405.

Judgment reversed and new trial ordered, costs to abide the event.  