
    Elizabeth McAuliffe, as Administratrix, etc., of Thomas McAuliffe, Deceased, Respondent v. New York City Railway Company, Appellant.
    First Department,
    December 6,1907.
    Railroad — injury to pedestrian — contributory negligence.
    A pedestrian who at night endeavors to pass in front of an approaching surface car when it is only twelve feet away, the car being brightly lighted and the view unobstructed, is guilty of contributory negligence which bars a recovery.
    Appeal by the defendant, the Hew York City-Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 16th day of February, 1907, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 8tli day of February, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      Bayard H. Ames, for the appellant.
    
      William J. Burke, for the respondent.
   Scott, J.:

The defendant appeals from a judgment entered upon a verdict in favor of plaintiff who sues for damages resulting from the death of her husband. The plaintiff’s husband, a young man about thirty-two years of age, was in the employ of the defendant, but not as a conductor ormot-orman. He was killed at about eight o’clock in. the evening of December 2, 1903. He and a companion, O’Con-nor, with whom lie had spent a couple of hours, walked to a spot on the southerly side of Twenty-third street, about the center of the block. The elevated railroad runs through Twenty-third street at this point, having stations on both sides of the street about midway between First and Second avenues.- The deceased and O'Connor stood for a few minutes, engaged in conversation, on the south curb, and. then the deceased started to cross to the north side of the street with a view of taking an uptown train on the elevated railway.His companion remained standing on the south curb, and is the plaintiff’s sole witness as to the accident. He testified that defendant’s east-bound track-was seven or eight feet away from the point where he and deceased had been standing; that after the deceased left him he stood watching him; that when deceased came out toward the- car tracks witness saw a car brightly lighted coming along the- east-bound track; that when he saw it it was ten or-twelve feet from McAuliffe; that McAuliffe walked straight ahead without stopping; started across the track ahead of the car, and was hit just as he was getting off the track. Upon this evidence the complaint should have been dismissed. So far as appears, the deceased had abundant opportunity to see the car, which was well lighted, and the street was unobstructed. He left the curb to cross the street, had only seven or eight feet to go before reaching the track, and the car was so near him that before he had been able to get across it was within a few feet of him. There seems to he no other conclusion than that McAuliffe heedlessly or recklessly walked directly in front of the car. The testimony- offered in behalf of defendant did not strengthen the plaintiff’s case.' The motorman testified that he saw McAuliffe leave the curb to cross the street, and that the car was then twenty-five or thirty feet from the point of the accident. He says he did everything possible to stop the car, and that when McAuliffe stepped on the track the car was five or six feet away from him. This is not inconsistent with O’Connor’s testimony. A bystander testified that he was standing on-the north side of the street and saw McAuliffe walk in front of the car. There was practically no conflict in the evidence, and it is apparent on reading it that not only did it fail to show an absence of negligence on the part of the deceased, but, on the contrary,' indicates very clearly the presence of such negligence.

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

Patterson, P. J., Ingraham, Laughlin and Clarke, JJ;, concurred.

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