#### Charles B. Willis, Respondent, *v.*Marx E. Harby, Appellant.

Second Department,

November 14, 1913.

Motor vehicles—negligence—injury to pedestrian walking on roadway —negligence — contributory negligence.

Action to recover damages for personal injuries received by the plaintiff, who was struck by an automobile. The plaintiff, an elderly man, after leaving the house of a relative in the night time, during a rain storm, instead of crossing the public street at a regular crossing, attempted to do so at an intermediate point, and, being unable to cross owing to the fact that the gutter on the opposite side of the street was filled with water, walked on the roadway and was struck by the defendant’s automobile.

■ Evidence examined, and held, insufficient to establish the defendant’s negligence or the plaintiff’s freedom from contributory negligence.

Appeal by the defendant, Marx E. Harby, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk in the 15 th day of January, 1913, upon the verdict of a jury for $1,000 and also from an order entered in said clerk’s office on the 15th day of February, 1913, denying defendant’s motion for a new trial made upon the minutes.

*Rowland Miles,*for the appellant.

*Willard N. Baylis,*for the respondent.

Burr, J.:

We think that the motion for a new trial should have been granted, upon the ground that the evidence failed to establish either defendant’s negligence or plaintiff’s freedom from contributory negligence.

On November 3, 1910, about seven o’clock in the evening, plaintiff, an elderly man, about eighty years of age, left the house of his daughter, Mrs. Sammis, which was situated on the westerly side of New York avenue, in the village of Huntington, .to proceed to his own home on the south side of Fairview street, in the same village. New York avenue runs approximately north and south. It is intersected by Carver place on the south, at a point 125 or 150 feet distant from the driveway *95into the premises of Mrs. Sammis. On the north it is intersected by Fairview street from the east and High street from the west, the former being almost a continuation of the latter and being about the same distance from Mrs. Sammis’ residence as Carver place. New York avenue is one of the principal thoroughfares of the village, and at the hour named was frequently crowded with vehicles coming from the station to the residence part of the village. On either side of New York avenue were cinder sidewalks, and the surface of the street was described as ‘ca macadam road with an asphaltic surface, ” which had been oiled not very long before the date named. On the easterly side of New York avenue there was a trolley track. There was evidence from one witness called for plaintiff that it was constructed with “ T” rails, the depth of which was three and a half inches. But we think that the evidence, particularly the exhibits introduced by plaintiff, shows clearly that they did not protrude above the surface of the ground to any such extent, or that the space between the rails was not part of the traveled roadway. It is true that this same witness said that between the rails “there is no beaten roadbed,” but he also testified that “ it is level where the trolley track is,” and the exhibits in the case, introduced by plaintiff, tend to confirm this testimony. There was also some testimony to the effect that when the surface of the roadway was wet, an automobile passing over it was likely to skid by reason of the character of the surface thereof. On the night in question it was raining and the wind was from the south. When plaintiff left his daughter’s residence he came down the driveway, which had a bridge over the westerly gutter, and crossed New York avenue to the easterly side, instead of going either to the south to Carver place or to the north to Fairview street, and there crossing the street where there were bridges over both gutters. When plaintiff reached the gutter on the easterly side of the street it was full of water, and there was no bridge across it. He then turned and walked south between the rails of the track, toward Fairview street, with his umbrella over his head, facing the direction from which the storm came. Just before he reached Fairview street, according to his testimony, he stepped clear of the easterly rail. As to this he is contradicted even by his own *96witnesses. But assuming that he did, he then says that he looked toward the west and saw defendant’s automobile coming toward him in a diagonal direction, and it crossed over one or more of the rails of the trolley track, struck him and knocked him down, and he sustained some injuries therefrom.

We fail to see how defendant’s negligence was established. There was a conflict of testimony between plaintiff’s witnesses as to the rate of speed at which defendant’s car was proceeding. One witness thought it was going eighteen or twenty miles an hour, and that owing to the slippery condition of the roadway it swerved from the center of the road over onto the car track. But this witness admitted that at the time when he saw the car proceeding at that rate of speed it had not reached the curve in New York avenue, which is to the south of Fairview street, and he does not undertake to state what the speed of the car was at the point of the accident. Another witness called for plaintiff, a chauffeur, who was then in defendant’s employ but had since been discharged by him, testified that the car was going at the rate of fourteen or sixteen miles an hour, and that it did not swerve, but that in turning the curve to the south of Fairview street defendant kept too far to the right, and so got on the car track. But in either case he was within that portion of the roadway which might be, if it was not frequently traveled by vehicles, and where he was not bound to expect that pedestrians would be. We fail to see wherein, under the circumstances here disclosed, even if he was operating his car at the higher rate of speed, this established negligence, since the accident did not occur at a street crossing, nor at any pont where defendant could reasonably anticipate that he must take' precautions against pedestrians making use of the roadway for sidewalk purposes when there was a good sidewalk on each side of the avenue. There seems to he no dispute that when defendant did discover plaintiff a short distance in front of the car he did all that he could to avert the accident, and the car was brought to a standstill not more than one hundred feet from the place thereof. The car was lighted with five lights, two at the front, two at the sides and one at the rear. There is testimony that no horn was blown nor any signal given, hut it is difficult to see what obligation rested upon the defendant to *97sound his horn between street crossings unless there was something in the way. There is no evidence that after plaintiff was discovered in the roadway there was any opportunity to do this.

As to the contributory negligence of plaintiff. When he left his daughter’s house, instead of proceeding south to Oarver place and then crossing the street, which would only have involved walking 125 feet or thereabouts, crossing the street at a regular crossing and then retracing his steps, or going north to Fairview street, which did not involve walking any additional distance, and there crossing the street, he crossed directly in front of his daughter’s residence, and when his progress on the east side was barred by the water in the gutter, instead of retracing his steps to reach a safe crossing, he proceeded to walk up the roadway j at an hour of the night when he knew the vehicular traffic was considerable, with an umbrella over his head, and apparently without taking any precautions for his own safety. The learned trial justice expressed the opinion that in a crowded city street such conduct would constitute contributory negligence as matter of law. Under existing circumstances, a verdict that plaintiff was free from contributory negligence is against the weight of the evidence. If plaintiff had looked he could have seen the lights on defendant’s car long before it reached him — much further than a person in the car could see an object in the roadway. Either he could have avoided it, or if the car turned so close upon him that this was impossible, then whether the cause of this turning was because the car skidded, or whether inadvertently defendant kept too far to the right, he was in that part of the roadway where he had a right to be and where plaintiff took the necessary risk of being, and in neither case is defendant liable for the consequences.

The judgment and order denying a motion for a new trial should be reversed and a new trial granted, costs to abide the event.

Jemes, P. J., Carr, Stapleton and Putnam, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.