#### Philip Geisendorfer, Respondent, *v.*Union Railway Company of New York City, Appellant.

First Department,

March 6, 1908.

Railroad — negligence — collision with, vehicle at street corner —■ erroneous charge.

Plaintiff driving a sprinkling'cart suffered injuries by colliding with the defendant’s surface car while endeavoring to cross the tracks in a diagonal direction. It appeared that going westerly on a cross street he turned the corner into an avenue intending to go south on the westerly side thereof, but did not look for or discover a car north bound on the. avenue until the forward wheels of his ' wagon were near the easterly rail of the track, and the horses had their heads over the westerly rail. It appeared also that it was-not necessary for the plaintiff to cross the track at this precise point.

*Held,*that under the circumstances it was error to charge that when one attempts to cross a street car- track and is at such a distance from an approaching car that he has reasonable grounds to suppose that he will be able to cross, it is the duty of the motorman to give him a reasonable opportunity to do so, and for that puipose to stop or check the speed of the car.

Appeal by the defendant, the Union Railway Company of. New York City, from a judgment of the Supreme Court in favor of the plaintiff, entered in the- office o.f the clerk of the "county of New York on the 1st day of July, 1907, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the *598lltli day of July, 1907, denying the defendant’s motion for anew trial made-upon the minutes. . •

*Bayard H. Ames,*for the appellant.

' *Aaron J. Colnon,*for the respondent.

Laughlin,, J,:

This action is brought- to recover damages- for personal injuries received by the plaintiff in a collision between a north-bound car of the defendant on Webster avenue and a sprinkling cart On which the plaintiff was riding at about two o’clock in the afternoon on the '27th day of August, 1905. It was a doubling sprinkling cart and the plaintiff was driving. He was passing out of One .Hundred and Eighty-third street westerly into Webster avenue, intending to turn southerly on that avenue. It appears by his own testimony that he came down a descending grade and did not look for or discover the'car until the'forward wheels of the wagon were near the easterly rail of the track on which it was approaching, and the horses were upon the track and their heads were over the westerly rail. One Hundred and Eighty-third street, westerly of Webster avenue, was a *eul de sac*extending only about 100 feet from the avenue. The plaintiff was not intending to traverse One Hundred and Eighty-third street westerly of the avenue, but, on the contrary, was swinging diagonally to the south, intending to go down Webster avenue a distance on the westerly side. At the close of the main charge the- court, at the recpiest of counsel for the plaintiff, instructed the jury, “tha.t-when one attempts to cross the track of, a street car and lias approached the track at such a distance from the approaching car that he has reasonable ground to suppose that he will be able'to cross the track, it is the duty of the motorman to give liim a reasonable opportunity to cross, and if, for that purpose, it is necessary for him to check the speed of his car, or even to stop the car entirely for a short space, it is his duty to do it, and the person crossing the track has the right, without being charged with .contributory negligence, to assume that that duty will be performed.” To this instruction counsel -for the' defendant duly excepted. We are of opinion that the charge was erroneous and misleading, at -least as applied to the facts of this case. As an abstract *599proposition limited to crossings where the rights of the pedestrian and the street railway company are equal it may be sound and it follows the language of judicial opinions in discussing somewhat similar questions. *(Brooks*v. *International R. Co.,*112 App. Div. 555; *Lawson*v. *Met. St. R. Co.,*40 id. 307.) However, in the case at bar, there was no evidence to render the instruction applicable^ for it appeared that the plaintiff, instead of seeing the car a certain distance away before lie drove upon the track, and prudently calculating as to whether he had time to go across before the car came along, did not look for or see it until the horses were upon the track, when it was too late to stop even if prudence dictated that course and there was not time to turn back. Moreover, it does not appear that it was necessary that the plaintiff should cross the track at tliis precise point. Had One. Hundred and Eighty-third street been open to the west, and had he been' going straight through, quite a different question would have been presented. *(Hewlett v. Brooklyn Heights R. R. Co.,*63 App. Div. 423; *Towner*v. *Brooklyn Heights R. R. Co.,*44 id. *628; McKinley*v. *Met. St. R. Co.,*91 id. 157.) It was not shown that there was any vehicle on the easterly side of Webster avenue south of One Hundred and Eighty-third street to obstruct the way, had the plaintiff discovered the car approaching and seen fit to turn down the avenue on the easterly side for a rod or two until it passed. It is not at all clear that plaintiff was free from contributory negligence, or that he sustained the burden of proof resting upon him on that proposition, but this erroneous and misleading instruction, as applied to the facts of the case at bar, requires a reversal, and it is not necessary to decide whether the case should have gone to the jury.

It follows that the judgment and order should be reversed and a new trial granted, witli costs to the appellant to abide the event.

Patterson, P. J., Qlarke and Hoúghton, JJ., concurred.

Ingraham, J.:

I concur with Mr. Justice Lahghlin, except that I do not think that it is proper to instruct a jury that an act of a person attempting to cross a railroad track is, as a matter of law, not contributory negligence. I think in all cases based upon negligence, to justify a recovery, the jury must find the defendant guilty of negligence *600and the plaintiff free from contributory negligence, and that in such a-case it would be error for the court to charge the jury, as a matter of law, that a defendant is guilty of negligence or a plaintiff free from contributory negligence. .

Judgment and order reversed j new trial ordered, .costs to appellant to abide event.