
    Patrick Healy, as Administrator, etc., of Bridget Healy, Deceased, Respondent, v. United Traction Company, Appellant.
    Third Department,
    November 14, 1906.
    Negligence — pedestrian struck after dark by street car —knowledge, of danger — failure to prove cause of death.
    ■A person walking in the outskirts of a city after midnight on a dark, misty night, who attempts to cross the street in the middle of a block in front of an approaching car which was less than 100 feet away when she was four feet from the track and which was moving at a speed of from six to nine miles an hour with its headlight burning, is guilty of contributory negligence. On such a night a pedestrian should not assume that the motorman would see her and ' check his car. - ' .
    Under such circumstances it is immaterial that the ground near the tracks was rough, for such person would be chargeable with contributory negligence in taking a chance of crossing an unknown place in the short time at her disposal as well as in attempting to cross a place'which she knew to be rough.
    A recovery for the death of such pedestrian cannot be sustained on the ground that the defendant was negligent in moving the car while she was-underneath" It before her body had been located, when the plaintiff has not affirmatively shown that death Was caused by such action, and the judgment will be reversed where, under the charge of the court, the verdict may have been reached by a finding that deceased was killed by the collision.
    Appeal by the defendant, the United Traction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 11th day of January, 1906, upon the verdict of a jury for $4,250, and also from an order entered in said clerk’s' office on the 20th day of January, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    About half-past twelve o’clock at night on May 18, 1904, plaintiff’s intestate," who was forty-five years of age, while crossing the defendant’s single track railroad on Fifteenth street, in the city of Troy, at a point fifty-three feet north of the north line of Hutton street, was run over by a south-bound car and killed. There was an electric light-at the corner of Fifteenth and Hutton streets, but the night was heavy, misty and rainy. When plaintiff’s intestate was within four feet of the track and about to cross, the defendant’s 'car, with headlight burning, which could be easily seen, was coming toward her and was about seventy-five to one hundred feet away. The car was going at a rate of from six to nine miles an hour. Plaintiff’s intestate started to cross and was struck by the car and killed. The first trial of the case resulted in a disagreement of the jury. Upon the second trial plaintiff secured a verdict for $5,000. Upon appeal this court held that the verdict was against the weight. of evidence and directed a new trial. (106 App. Div. 616.) Upon the third trial, resulting in a judgment from which this appeal was taken, he has recovered a verdict for $4,250. From the judgment entered upon this verdict. and from the order denying defendant’s motion for a new trial this appeal is taken. Further facts appear in .the opinion.
    
      Patrick C. Dugan, for the appellant.
    
      John F. Murray, for the respondent.
   Smith, J.:

Upon the former appeal it appeared from the record that plaintiff’s intestate attempted to cross in front of an approaching car when the car was only thirty-five feet from her. We were of opinion that her attempt to cross under those circumstances was clearly unwarranted in the exercise of reasonable care on her part, and the plaintiff had failed to show that she was free from contributory negligence. The only witness of the accident has now changed his testimony and says that when she started to cross the track the car was from seventy-five to one hundred feet from her. Otherwise the proof is substantially the same upon the question of her contributory negligence. Does this proof justify a different holding upon this appeal?

The location in question was so far from the center of the city that there was no pavement and along part of the block where the accident occurred there was no flagging. A “ T,” rail was being ' used by the defendant company. The plaintiff claims to have proven that the road was badly washed and the dirt washed away from the rail and ties to the extent that there were many holes in and by the said track and so the ties stood up so far that in muddy weather you could keep out of the mud by walking on the ties. "This acbident occurred just opposite the residence of plaintiff’s intestate, so she may fairly be presumed to have a general knowledge of the surrounding conditions: At half after twelve at night so far from the center of the city the track is less liable to be obstructed and cars are run more freely and less care is required on the part of those running the cars than at hours when the streets are more used and there is greater liability to obstruction. • Plaintiff’s intestate saw the car coming. A few’seconds only would bring it to her. If there were sufficient light so that she saw the track in its rough condition there can be no question that she was guilty of negligence in attempting to.cross ahead of the car. If it, were so dark she could not see the roughness of the track, as' is the more probable, she is no less guilty of negligence for she took her chances of getting across an unknown space within the few seconds allowed her before the car should reach the spot. After twelve o’clock upon a dark, rainy night she had no right to assume that a motorman on the car would see her and check his car if she failed to get over.

■ Respondent relies upon several authorities. The strongest, however, in favor of the plaintiff is'the case of Frank v. Metropolitan Street R. Co. (58 App. Div. 100). In that case Presiding Justice Van Brunt dissented. The conditions were quite- different from those here found. The injury was at a street crossing at séventhirty in the evening when the streets were full, and the car was drawn by horses. The plaintiff in that case who was struck was- sixty years of age and ivas leading a child. The right to assume that the driver would be on the lookout f.or him and protect him was very different from -the right of plaintiff’s intestate to thus assume, who after midnight was crossing between streets before an electric car, which ordinarily runs much faster and presents much greater danger.

This conclusion is reached upon the assumption of the entire truth of the'testimony of plain tiff’s witnesses. It amounts, however, to almost a denial of justice when a defendant’s property can be taken solely upon the evidence of such a witness asís the witness Partland who swore for the plaintiff. Especially is this so when the verdict must be sustained if at all upon á change in his testimony upon a material matter between two trials. His explanation of the change is not at all satisfactory.

Respondent’s counsel further urges that the judgment should be sustained upon the ground that the jury was authorized to find that the defendant was guilty of negligence after the deceased was first struck and while under the car. It appears that they were unable to find the deceased and the motorman was directed by the conductor to move the car ahead. It is claimed by the plaintiff that this was negligence for which the defendant was answerable. The answer to the respondent’s contention is twofold. First, the plaintiff must prove affirmatively the injury caused by such negligence. It is not proven that plaintiff’s intestate was not already dead before the car was moved the second time or that such act caused any further injury than had already been caused by the original accident. A further answer is that under the charge of the court the verdict may have been reached by a finding that the deceased was killed by the original accident not contributed to by any negligence of the deceased. As in our judgment this was unauthorized-the verdict cannot rest upon proof of negligence upon moving the car after the accident had originally happened.

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

All concurred; Cochrane, J., in result.

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