Sarah E. O'Callaghan, Respondent, v. Metropolitan Street Railway Company, Appellant

Sarah E. O’Callaghan, Respondent, v. Metropolitan Street Railway Company, Appellant. Negligence^— injury sustained by a pedestrian crossing a street, who is caught between two street cars passing in opposite directions. In an action to recover damages for personal injuries sustained by the -plaintiff while crossing from the west to the east side of Amsterdam avenue in the borough of Manhattan at One Hundred and Fourth street, it appeared thát'the accident happened in the daytime, and that before attempting tó cross the plaintiff looked up and down the avenue: that an uptown car was then, a little above One Hundred and Third street; that a south-bound car was then at One Hundred and Sixth street; that when she had crossed the westerly or- downtown track the uptown car was so close to her that she could not cross the uptown track in safety, and that while she stood between the tracks waiting for that car to pass, the down town car came along quite fast, without sounding any warning, and that she was caught between the two cars, sustaining the injuries in question. Held, that the question, of the. defendant’s negligence and of the plaintiff’s freedom from contributory negligence-were'properly submitted to the jury; and that a judgment entered upon a verdict in favor of the plaintiff should be affirmed. Woodward, J., dissented. Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of June, 1901, upon the verdict of a jury for $1,000,, and also from an order entered in said clerk’s office on the 22d day of July, 1901, denying the defendant’s motion for a new trial made upon the minutes. . . Henry Melville and Henry A. Robinson, for the appellant. George G. Lay \Thomas R. Wiokes with him. on the brief], for the respondent. [MAJORITY — Hirschberg, J.:] Hirschberg, J.: The plaintiff was injured on the southerly crossing of Amsterdam avenue in Manhattan at One Hundred and Fourth street, being caught between an uptown and a downtown car; it was in the daytime, and she was crossing the avenue from the west. Before attempting to cross she looked up and down the avenue. From the south a car was coming up and was then a little above One Hundred and Third street. From the north a car was coming down and was then at One Hundred and Sixth street. When she had crossed the downtown track the uptown car was so close to her that she could not cross that track with safety, and while she stood between the tracks waiting for that car to pass, the downtown car came along quite fast and without the warning of the gong, and the injury was occasioned. The question of the defendant’s negligence was scarcely raised upon the trial. No witnesses were examined upon the trial, arid no discussion is necessary to establish the fact that a jury may find negligence from the circumstances presented by the record. It was claimed below, however, and it is insisted upon the appeal, that the plaintiff was chargeable with contributory negligence on the authority of Davenport v. Brooklyn City R. R. Co. (100 N. Y. 632). The cases are essentially different. In that case the plaintiff desired to board a car on the south-bound track. He was standing on the westerly side of the tracks when he saw it coming, the proper side from which to board it. Instead of remaining there until the car reached him, he crossed both tracks to the easterly side, signaled the car and then endeavored to board it from between the two tracks, while, as he knew, a car was approaching on the northbound track, by which latter car he was injured. He saw the peril before he placed himself in the way of the collision, and after he took his unnecessary position of danger he had time to have returned to the easterly side of the tracks, or even, as the court found, to have gotten upon the car in safety had he chosen to do so. The result was that it was impossible for the injury to have resulted without some carelessness on his part. . Whether the plaintiff was negligent in this case was a question of fact. She was not' bound to assume that it would be dangerous to attempt to cross a street with á car on the nearer track two blocks away, or that such car. would come upon her without warning before,another car less "than, half the distance from her would reach her upon the further track, and whether, under such circumstances, she failed in the exercise of ordinary care was clearly for the jury to determine. The judgment and order should be affirmed. All concurred, except Woodward, J., dissenting, and Goodrich, P. J., absent Judgment and order affirmed, with costs.