
    Catherine Cowan, Resp’t, v. The Third Avenue Railroad Company, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 19, 1888.)
    
    Negligence—Duty of passenger in crossing a railway in New York city.
    It is the duty of a passenger in crossing a railway in the city of New York to look to ascertain whether there are vehicles coming which may endanger the crossing. It is the duty of every such passenger to make a reasonably vigilant use of their eyes and ears to ascertain whether in crossing a street any danger will be incurred.
    Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury and from order denying motion for new trial.
    
      J. H. Lyon, for app’lt; C. E. Miller, for resp’t.
   Van Brunt, P. J.

The plaintiff in this action was injured at the north crossing of One Hundred and Sixtieth street and Tenth avenue in the city of New York by coming in contact with a car on the down track of the defendant’ s cable road.

The defendant moved to dismiss the complaint upon the ground that the plaintiff did not show that she w-as not guilty of contributory negligence and the exception taken upon the denial of this motion raises the main question upon this appeal.

An examination of the record in this case shows that there is no proof, whatever, that the plaintiff before attempting to cross the tracks of the defendant looked to see whether there was any danger to be apprehended or any car coming which it was necessary for her to avoid. It is true that in various parts of her testimony she intimates that she did look, but upon her cross-examination she distinctly states that she cannot say whether she looked or not, and her whole testimony is dependent upon the fact that it was a habit of hers to look.

The testimony of the plaintiff is exceedingly unsatisfactory, in the fact that it is impossible for her to state how the accident happened. It appears that at the time of the happening of the accident, the avenue was entirely clear, and if she had looked for a car she must have seen it, and that her eyesight was perfect. And at least one of the witnesses swore that she was going across the avenue with her head down, neither looking upon one side or the other.

The necessity upon the part of a passenger in crossing a railway in the city of New York, to look to ascertain whether there are vehicles coming which may endanger the. crossing, is too well settled to need authority. It is the duty of every such passenger to make a reasonably vigilant use of their eyes and ears, to ascertain whether in crossing a street any danger will be incurred.

In the case at bar the evidence shows an utter failure upon the part of the plaintiff to use that diligence which the law requires of passengers crossing a street. The most that she testified to was that she was in the habit of looking, but she would not testify that she did look upon this occasion, and it is apparent that if she had looked she-would have seen the car and the danger. The fact that she did not look is supported by the testimony of one of the witnesses who was called upon the part of the plaintiff and he was an eye witness of the accident.

Such being the condition of the evidence, the plaintiff failed to show that she had used that care which a person of reasonable prudence would have used under the circumstances, and therefore, that she was guilty of contributory negligence, and under these circumstances, it was the duty of the court to have dismissed the complaint, and it was error to submit the question to the jury.

The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event,

Daniels and Brady, JJ., concur. ¡  