Walter Daly, Appellant, v. New York City Railway Company, Respondent

Walter Daly, Appellant, v. New York City Railway Company, Respondent. (Action No. 1.) Second Department, May 7, 1909. Railroad — injury to pedestrian crossing street — contributory negligence. Where a pedestrian while standing on the sidewalk saw a rapidly approaching west-bound car from 75 to 100 feet distant, and while attempting to cross the street stepped upo.n the track on which said car was approaching without again looking, he is guilty of contributory negligence as a matter of law. Appeal by the plaintiff, Walter Daly, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 8th day of August, .1907, upon the dismissal of the complaint by direction of the court after a trial at the Westchester Trial Term. Charles F. Dalton and Edward J. Larkin, for the appellant. Bayard H. Ames and Walter Henry Wood [James L. Quackenbush with him on the brief], for the respondent. [MAJORITY — Hirschberg, P. J.:] Hirschberg, P. J.: The nonsuit was. proper under the authorities. The plaintiff, accompanied by his wife, was injured in the borough of Manhattan on the evening of December 25, 1903. They had just arrived in the city of Mew York on their way from Roxbury Station, Conn., to visit a daughter in Paterson, M. J. They boarded-a Fourth >avenue car at Forty-second street, and left it at the southwest corner of Twenty-third street and Fourth avenue.. They intended to take a West Twenty-third street ferry to Mew Jersey, and for that purpose attempted to cross to the north side of Twenty-third street to board a west-bound car. Standing on the sidewalk, the plaintiff looked east for the car . he desired to board, but saw none. He then looked west and saw a car east bound. He let that car pass,, looked east again and saw a west-bound car on the north track at the northeast corner of the streets and at a distance of about 75 or 100 feet from where he stood. He then looked west again, and finding his way safe over the nearest or east-bound tracks, attempted to cross, walking on the crosswalk. He did not look east again after leaving the sidewalk, and when he reached the farthest or north track in Twenty-third street was struck by the west bound car, which he had seen while standing on the sidewalk. The car was going very rapidly. In this state of facts the counsel for the appellant insists that there should be> a reversal mainly on the theory of Lofsten v. Brooklyn Heights R. R. Co. (97 App. Div. 395). That case, however, was reversed in the Court of Appeals (184 N. Y. 148), that court holding in similar circumstances that the injured person must be deemed guilty of contributory negligence as matter of law. Tully v. N. Y. City R. Co. (127 App. Div. 688) is a case where the plaintiff, about to cross the Bowery, in the borough of Manhattan, at Bieeckér street, looked up and down before attempting to cross and saw a car about two blocks away coming very fast. She proceeded to cross the street without looking again, and while leaving the track was struck by the car which she had seen. It was held that a pedestrian, seeing an approaéhing car while attempting to cross a street, must, before stepping on the track, ascertain whether or not it was safe to do, so, and that a refusal of the court to charge that she was required, after leaving the curb, td look again before she tried to cross the track, was error. Tinder these decisions and the cases cited in the opinions written in them, it must be deemed the settled law in this State that it was negligence on the part of the plaintiff herein to step upon the north-bound track in Twenty-third street without first looking for the car which he had seen approaching when he was on the sidewalk.' The judgment should be affirmed. Present — Birschberg, P. J., Gaynor, Burr, Rich and Miller, JJ. Judgment unanimously affirmed, with costs.