Opinion
June, 1906.
William E. Weaver, for appellant.
I. Seymour, for respondent.
This is an action brought to recover damages for injuries received in an accident, the happening of which, the plaintiff alleges, is attributable, solely and alone, to the negligent handling and operation of defendant's cars by its employees. The testimony of the plaintiff shows that she started to cross Third avenue at Seventy-seventh street, going from east to west; that before she stepped from the northeast corner she looked north and south and saw cars in both directions, one at Seventy-eighth street, south bound, and one at Seventy-sixth street, north bound; that she then stepped off the curb and started westwardly, passed over the tracks that carried north bound cars and that, as she went on the rails which the south bound cars traveled, she was struck, the car coming so quickly she could not save herself. The record is absolutely devoid of any evidence which would show that her attention had been distracted, or that any obstruction blocked her view or prevented observation of the car in the exercise of the care the law imposes, as a duty. The proof is somewhat unsatisfactory that plaintiff looked a second time; but, accepting her testimony as correct on this point, it would seem that the second observation she made was when the car was right upon her, and it was occasioned by the danger that then menaced her. Upon the whole, we are not satisfied on this record that she has successfully borne the burden of proving herself free from contributory negligence and hence should not have prevailed, and the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.
GILDERSLEEVE and LEVENTRITT, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.