
    Catharine Scott, Adm’rx, Resp’t, v. The Third Avenue Railroad Co., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 13, 1891.)
    
    Negligence—Contkibutoiiy.
    Plaintiffs intestate, while attempting to cross defendant’s tracks, was struck by a car and injured so that he died. It appeared" that the view of the track was unobstructed, and the headlight of the car was lighted. Plaintiff who was with the intestate at the time of the accident, testified that both she and he looked both ways, but saw only the car which they allowed, to go by before attempting to cross; but on cross-examination admitted that the only reason that she knew that he looked was that it was perfectly natural for him to do so. Held, insufficient to show the absence cf contributory negligence on the part of the deceased.
    Appeal from judgment entered on verdict and from order denying motion for new trial.
    
      W. N. Cohen, for app’lt; G. W. Wilson, for resp’t.
   Van Brunt, P. J.

It appeared from the evidence developed upon the trial of this case that the plaintiff and her husband lived on Second avenue, between One Hundred and Twenty-fifth and One Hundred and Twenty-sixth streets, and that on One Hundred and Twenty-fifth street is a railroad upon which cable cars are operated, and that both the plaintiff and her husband had been accustomed to ride upon these cars. On the 16th of May, 1889, the plaintiff and her husband had gone to visit Mrs. Marshall, who lived about two blocks from where they lived, and about half-past nine o’clock in the evening they started to go home, proceeding northward along the west sidewalk of Second avenue. Upon coming to the railroad track on One Hundred and Twenty-fifth street, they looked east and saw a west bound car approaching on the north track and waited just south of the south track for it to pass. As soon as this west bound car had cleared the crosswalk they attempted to cross, and stepping upon the south track were instantly struck by an east bound car, which was only a short distance from them when they attempted to cross. The east bound car could have been seen a long distance before it approached the crossing. Both were knocked senseless and the plaintiff’s husband died from the effects of the shock.

It further appeared that it was a clear night and that One Hundred and Twenty-fifth street is straight, broad and well lighted with electric lights. The colliding car had a headlight and locomotive reflector, and there was evidence from which a jury might find that it was proceeding at a high rate of speed. The eyesight and hearing of both the plaintiff and deceased were good. There was evidence tending to show that although the west bound car was ringing a bell, the east bound car was not; and that the grip-man of the east bound car, with which the plaintiff and her husband collided, was looking to the north and not along the line of the track.

One of the claims presented upon the part of the appellant is that the evidence not only failed to show that the deceased was not guilty of contributory negligence, but such fact affirmatively appeared. And this claim is predicated upon the fact that there is no evidence that the deceased looked before he stepped upon the track for the approaching car; and that the proof is explicit that if he had done so he would have seen the danger and not have stepped upon the track in front of the car.

It is true that the plaintiff swore that both she and her husband looked both ways, and that they only saw the west bound car.

But it is to be observed that upon cross-examination it was shown that it was a mere inference upon her part that her husband looked or even that she looked. She was asked “ How do you know your husband looked ? ” and she answered, “ I think it was perfectly natural for him to look.”

“ Q. That is the only reason you know he looked ? A. Yes.”

It is apparent therefore from the testimony of this witness, which is the only evidence that this precaution had been taken, that she has no recollection whatever that she saw the deceased look for the east bound car.

It appears from the testimony of the other witnesses in the case that these parties were seen standing upon the side of the road apparently talking to each other, and that just as this car was upon them they stepped in front and were almost instantly struck. It being a clear night, the car having its headlight lighted, and there being no obstruction to their vision, it is apparent that if they had looked they must have seen the approaching car, and if, notwithstanding the approach of the car, they attempted to cross the street in front of it, they ran the risk of being struck by it before they could reach a place of safety.

In the case of Fenton v. Second Ave. R. R. Co., 126 N. Y., 625 ; 36 St. Rep., 385, the rule is distinctly laid down that street railways have a preference in the street, and while they must be managed with care so as not to injure persons in the street, pedestrians must yet use reasonable care to keep out of their way.

It is urged that if the gripman had been looking toward these people the accident might have been avoided. But it is clear from the testimony of the other witnesses who were examined upon the trial that the gripman had no reason to anticipate that these people were about to cross immediately in front of his car. He swears that he saw them in conversation ápparently, and that when the car was almost upon them they stepped in front of it, and attempted to cross the track. And the fact which is established beyond question that these parties had hardly crossed the first rail of the track before they were struck, shows that the car was immediately upon them when they attempted to cross. Under such circumstances, the gripman seeing the parties standing there as testified to would have no reason to apprehend that they were going to cross in front of the approaching car.

In the case of Davenport v. The Brooklyn City R. R. Co., 100 N. Y., 632, it was also expressly held that where a party crosses a city railroad track he is bound to use his eyes and exercise vigilance to keep out of the way of the cars upon the track.

In this case, it seems to us, the evidence shows that these persons did not resort to the most ordinary means of ensuring safety in crossing the street, or the accident would never have happened. As already stated, the car was in full Sight. It may be that it was approaching at a very high rate of speed, but that fact in no way interfered with the vision of these parties; and the fact is also established that they were struck almost immediately as they attempted to cross the track.

It seems to us clear that these persons were watching the west bound car and had no thought for the east bound car, and when the west bound car passed they stepped upon the track in front of the east bound car, and were immediately struck.

This uncontradicted evidence shows, as the evidence in Fenton v. Second Ave. R.R. Co., showed, that the accident was due either to the negligence or the misfortune of the deceased only.

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

Ingraham and Daniels, JJ., concur.  