Opinion
December, 1906.
Cornelius J. Early (Edwin V. Guinam, of counsel), for appellant.
Henry A. Robinson (Bayard H. Ames and Walter Henry Wood, of counsel), for respondent.
The testimony on the trial of this action shows that, about midday on May 23, 1903, the plaintiff, while in the act of crossing Tenth avenue from the west to the east side, at the south corner of Forty-first street, saw a horse car coming down on the westerly track; that she waited at the curb for it to pass. She then crossed on the cross-walk and was on the south bound track, and within ten or fifteen feet of the most easterly rail of the uptown track, when an electric car was coming up on the easterly track about 125 feet south of the southerly side of Forty-first street on a clear track. Plaintiff continued on her way across the avenue and was within one foot of being clear of the most easterly rail on the north track, when she was struck by the fender of the approaching car and thrown to the street under the car, receiving the injuries for which she asks damages. The car did not stop until the center of it had reached the north cross-walk. There is a down grade on this avenue extending from Thirty-sixth to Forty-second streets. Defendant's counsel moved for a dismissal of the complaint on the ground of contributory negligence and the failure of plaintiff to show any negligence on the part of the defendant, which motion was granted by the learned court below. Upon an appeal from a nonsuit, appellant is entitled to the most favorable inferences deducible from the evidence. Higgins v. Eagleton, 155 N.Y. 466; Lewis v. Erie R.R. Co., 105 A.D. 292. Upon a clear track, if defendant's motorman was reasonably vigilant and had his car under control, whether or not he could have brought it to a stop or sufficiently reduced its speed to avoid an injury within the distance of 125 feet was at least a question of fact. Mills v. Brooklyn City Ry. Co., 10 Misc. 1. When it is further borne in mind that at crossings pedestrians are entitled to rely to some extent upon the rule requiring drivers to exercise especial care (Moebus v. Sherman, 108 N.Y. 369), it does not seem that, within the doctrine of our adjudications, it can be held that a person who attempts to cross a street at a crossing, with but fifteen feet to pass over in order to reach a place of safety, at a time when a car is approaching from a distance of 125 feet, is, as matter of law, guilty of contributory negligence. Mathers v. Interurban St. R. Co., 98 N.Y.S. 433.
GILDERSLEEVE and DAVIS, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.