Gildea v. Metropolitan Street Railway Co.

The plaintiff, twenty-three years of age, attempted - to cross the track of the defendant between First and Second avenues on the night of June 30, 1898, between ten and a quarter-past ten o’clock. The plaintiff testified that as she stepped off the curb into the street she looked toward Second avenue and saw a car at Second avenue on Fifty-ninth street; that it looked to her to be standing at Second avenue with a dark light on the top of the car; that after seeing this car she looked toward Third avenue and then proceeded to cross the street. She says, “ and then I looked again, and when I looked again the car was onto me. I seen the car twice before I was *529struck by it. The first time I saw it near Second avenue, I was outside in front of 227. * * * When I saw it the second time it was still dark; then I went across the street, and when I looked the car was near me. The car at that time was still dark! When I saw it that last time I was on the track, and I didn’t hear no bell nor nothing. When I saw it the last time it was almost on top of one.” She also testified that Fifty-ninth street along in that direction is a very dark street, and that on that night it was dark up towards Second avenue. There was further evidence that as the car came from Second to Third avenue the bell was not rung, and that the car was going fast, with no lights on it, but there was plenty of light for the witnesses to see the plaintiff at from 50 to 125 feet from where she was struck.

I think there was evidence to justify the submission of this case to the jury. The jury could find that the light was sufficient for the motorman to see the plaintiff at a distance of 125 feet; that when she stepped into the street she looked to see if it was safe to cross, and that she saw a car which appeared to her to be stationary at Second avenue; that as she attempted to cross the street the car came up with full speed and struck her before she could cross the track ; that the motorman could have seen the plaintiff crossing the track, and that, either from inattention or for some other reason, he failed to stop the car, so as to enable her. to cross in safety. This would be evidence from which the jury could find negligence.

Upon the question of contributory negligence, I think there was sufficient to justify the jury in finding that the plaintiff saw the car at Second avenue; that it appeared to be stationary, and that she then attempted to cross the street. I do not think that it was contributory negligence for her, under such conditions, to cross the track.

Upon the whole case, both the defendant’s, negligence and the plaintiff’s contributory negligence were for the jury, and the case was submitted upon a charge to which no objection was taken. I think the judgment should be affirmed, with costs.

Rumsev, Patterson and O’Brien, JJ., concurred; Van Brunt, P. J., dissented.

Judgment affirmed, with costs.