
    Wilhelmina Friedman, Adm’rx, App’lt, v. The Dry Dock, East Broadway & Battery Railroad Co., Resp’t.
    
      (New York Common, Pleas,
    
    
      General Term,
    
    
      Filed Nov. 3, 1890.)
    
    Negligence—When a question fob the juby.
    Plaintiff’s intestate, aged sixty-seven, attempted to cross a street in the city of New York which, had snow banks between the sidewalks and car tracks. The view was unobstructed and a car rapidly approaching. Deceased called to the car to stop, crossed the track and attempted to cross the snow bank, but fell between it and the car, and sustained fatal injuries. Reid, following 110 N. Y., 676; 18 N. Y. St-, te Rep., 1029, that the questions of negligence and contributory negligence should' have been left to the jury.
    Appeal by plaintiff from judgment dismissing complaint, entered in favor of defendant by direction of the court at trial term.
    
      James M. Smith (.Robert Sewell, of counsel), for app’lt; John M. Scribner, for resp’t.
   Bischoff, J.

This action was brought to recover damages suffered by the death of plaintiff’s intestate, alleged to have been caused by the carelessness or negligence of the defendant’s driver in the management of one of its cars. The facts relied upon for such recovery, briefly stated, are as follows: On January 25, 1881, between about six o’clock and seven o’clock in the' evening, plaintiff’s intestate, a man about sixty-seven years of age, and who was in vigorous health, excepting the usual feebleness accompanying advanced years, attempted to cross Grand street, in the neighborhood of Goerick street, from the north side to the south side. At this point on Grand street there were three seporate tracks used in the operation of horse cars, and between the southern track and the curb, on the south side of Grand street, there was at the time a snow bank between two and three feet high and about fifteen feet in length. When plaintiff's intestate vras attempting to cross, one of defendant’s cars was approaching on a down grade from the west and in an easterly direction at an unusually rapid rate of speed. It was a cold and clear night, and the car was plainly visible at a distance of one hundred feet or more, and excepting the snow bank and car mentioned there was nothing to obstruct either view or passage.

Plaintiff’s intestate had reached the southern track, upon which defendant’s car was approaching, and when it was within ten or fifteen feet of him he called to it to stop, and proceeded to cross the track. Having crossed the track he attempted to wade through, or leap over, the snow bank, and in'so doing fell between the latter and the car, and in that way sustained the injuries of which he died four days later. Upon this state of facts the case is no longer open for original consideration by this court. The first trial ended in the dismissal of the complaint, and upon appeal to the general term the action of the trial judge was sustained; Mr. Justice Yan Hoesen, however, dissenting from the opinion of his associates, and writing an opinion for reversal. Friedman v. D. D., E. B. & B. Railroad Company, 3 N. Y. State Rep., 557.

The learned, justice, writing the dissenting opinion, held that it was not contributory negligence as matter of law for plaintiff’s intestate to proceed to cross the track and to attempt to wade through or leap over the snow bank upon seeing the approaching car, and, that whether or not the plaintiff’s intestate was himself negligent was an inference to be drawn from the facts, and that the facts would sustain a finding to the effect that he was not negligent. The dissenting justice also held that the testimony would sustain a finding of negligence on the part of the defendant, resulting in the injuries to plaintiff’s intestate. These views were adopted by the court of appeals and the judgment was reversed and a new trial ordered. Friedman v. Dry Dock, E. B. & B. R. R. Co., 110 N. Y., 676; 18 N. Y. State Rep., 1029.

Upon the second trial, at which the judgment now appealed from was rendered, Messrs. Skill man and Roll were the chief witnesses on whose testimony the plaintiff relied to make out her case. This testimony I have carefully compared with the facts as shown in the dissenting opinion of Mr. Justice Yan Hoesen, and there does not appear to me to be any appreciable variance between the alleged facts as testified to by the witnesses named and the facts mentioned in such opinion. This court is bound, therefore, to accept the views of the court of appeals, and, under the circumstances, it was error for the learned judge presiding at the second trial to withdraw the consideration of the. question of defendant’s negligence and the" plaintiff’s intestate’s contributory negligence from the jury.

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

Daly, Ch. J, concurs.  