Opinion
April Term, 1903.
I.R. Oeland and George D. Yeomans, for the appellant.
George F. Elliott [ Henry Escher, Jr., with him on the brief], for the respondent.
The action is for negligence. The plaintiff, a young man of nineteen years, started at eight o'clock in the rainy evening of April 20, 1901, to cross Broadway, in the borough of Brooklyn, at a point two doors distant from the corner of Ellery street. He was familiar with the neighborhood and knew that street surface cars were running on Broadway. There was "plenty of light" at the locality. The story of the plaintiff is that as he stepped off the curb to cross the street he looked in both directions and saw the car then two doors distant from the corner of Ellery street coming toward him. He saw the car again between the two corners, and again near the corner as he reached the first rail. He was struck by the fender of the car. He says that this happened as he went to put his foot over the second rail. His witness Sheldon says that plaintiff was at the first rail, and his witness Lotridge says that the plaintiff was putting his foot on the first track. The plaintiff says that the car was going at ordinary speed, he could not say whether fast or slowly. Sheldon says the speed was ordinary and natural. The plaintiff admitted that he thought he could get across without being hit by the car; that he thought the car would stop "at one of them crossings anyhow to give me a chance," and that he depended upon the stopping of the car, as he thought it was bound to stop, or he "would not have risked it at all." Thus the case of the plaintiff shows that at a point where the car had the paramount right of way, and when he knew of its approach and close proximity, and although he saw the attempt was perilous if the car continued on its course, he risked crossing the tracks because he thought it would stop at a crossing as he thought it was bound to do. There is no proof that the car was bound to stop at the crossing at Ellery street, or that the plaintiff had any reasonable ground for such belief, or of any attendant circumstances to warrant such surmise. His error was not a miscalculation as to the distance he had to pass over compared to that to be passed over by the car, but in his assumption, without reason therefor, that the car would stop before coming on. Under such circumstances, we think he did not show himself free of contributory negligence. ( Belton v. Baxter, 54 N.Y. 245; Wendell v. N.Y.C. H.R.R.R. Co., 91 id. 420, 428; McClain v. Brooklyn City R.R. Co., 116 id. 459, 465.)
The judgment should be reversed and a new trial be granted, costs to abide the event.
BARTLETT, WOODWARD, HIRSCHBERG and HOOKER, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.