
    Samuel Bernstein, Respondent, v. The New York City Railway Company, Appellant.
    (Supreme Court, Appellate Term,
    February, 1907.)
    Street railways — Operation: Collision with vehicles — Contributory negligence; Actions — Sufficiency of evidence — Contributory negligence. .
    In an action for injuries sustained by being struck by a street car while driving an ice cream wagon across the track in bright daylight when the plaintiff could see a distance of at least ten blocks in each direction but testifies he did not see anything, he has failed to establish his freedom from negligence.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, thirteenth district, borough of Manhattan, rendered in favor of the plaintiff.
    William E. Weaver, for appellant.
    Bogart & Bogart; for respondent.
   Gildersleeve, J.

Some time between one and two o’clock in the afternoon of a clear day, the plaintiff, who was driving an ice cream delivery wagon across Third avenue from west to east through Twentieth street, was struck by a south bound car of defendant and received injuries to recover damages for which this action was brought. The plaintiff testified that when he reached Third avenue, “ I crossed right through and got knocked by the car.” Upon being asked if he saw anything, he said: “ I did not see anything.” Upon cross-examination he testified that he did not see anything;” that he did not see the car before it struck him; that it was in bright daylight and that he could see a distance of at least ten blocks north and south at that point on the avenue. Under such circumstances it cannot be said that the plaintiff absolved himself from the charge of negligence. It has frequently been held under such circumstances that, even if' a plaintiff has looked for a car but failed to observe one, he is not therefore free from negligence. In the case at bar there is no evidence that he made the slightest effort to look for an approaching car, and he swears that he did not at any time see the car until it struck him. The case of Duffy v. Interurban St. R. Co. (52 Misc. Rep. 177), referred to by respondent, has no application in that there the plaintiff Was a pedestrian at a crossing and the complaint had been dismissed, in which case the testimony of the plaintiff is to be taken as true; and Mr. Justice Fitzgerald very properly said: It does not seem * * * it can be held that a person who attempts to cross a street * * * with but fifteen feet to pass over in order to reach a place of safety, at a time when a car is approaching at a distance of 125 feet, is, as a matter of law, guilty of contributory negligence.”

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

Dowling, J., concurs.

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