#### Mary Carley, as Administratrix, etc., of Patrick Carley, Deceased, Respondent, *v.*Adrian H. Joline and Douglas Robinson, as Receivers of Metropolitan Street Railway Company, Appellants.

First Department,

December 31, 1913.

Railroad —negligence — death, of street cleaner struck by street car — evidence — contributory negligence.

Where in an action to recover for the death of a street cleaner struck by one of the defendant’s cars, there is no evidence as to any of the attending circumstances for some minutes prior to the accident, except that two witnesses testified to seeing the car hit the decedent at the moment of *781impact, and it is evident that the motorman had the car under control, there is a failure to establish the negligence of the motorman or the freedom of the decedent from contributory negligence, and the complaint should be dismissed.

Appeal by the defendants, Adrian H. Joline and another, as receivers, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 12th day of March, 1913, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 24th day of April, 1913, denying the defendants’ motion for a new trial made upon the minutes.

*Lemuel E. Quigg*of counsel *[Masten &*Nichols, attorneys], for the appellants.

*Joab H. Banton*of counsel *[John J. Pheelan,*attorney], for the respondent.

Clarke, J.:

On October 28, 1911, about two-forty o’clock in the afternoon, while plaintiff’s intestate, a street cleaner in the employ of the city of Mew York, was on Columbus avenue at Sixty-sixth street attending to his duties he was struck by a northbound car, receiving injuries from which he died on October thirty-first.

Two witnesses testified to seeing the car hit Carley at the moment of impact, but there is no testimony as to his position upon the street, or what he was doing, or any of the attending circumstances, for some'minutes prior to the accident.

It is impossible to find in this record anything beyond the mere happening of the accident upon which to predicate negligence on the part of the defendant or freedom from negligence on the part of the intestate. The car and the street sweeper were both lawfully in the street. The car was propelled upon the tracks in the performance of the regular business of a carrier. The street sweeper was in his uniform and was in the performance of his duties. The duty was upon the motorman to look out for people upon the street; so it was the duty of the decedent to look out for himself. If by reason of his conspicuous uniform he could be readily distinguished by the motorman, so the sweeper, with his knowledge *782of the frequent movements of cars upon the tracks, could have easily seen the approaching trolley car if he had looked. Although he was there as of right and in the performance of his duties, yet, nevertheless, this did not relieve him of all responsibility.

From the fact that the car was stopped within its own length after the accident, it is evident that the motorman had it under control. It is not to be presumed that he deliberately ran down the sweeper. From the facts proven the inference is as readily drawn that the sweeper suddenly stepped in front of the car and so close thereto that it was impossible for the motorman to stop in time to avoid the collision, as it is that the accident was due to the want of vigilance of the motorman. In other words, the plaintiff, having the burden, has failed to show that the accident was due to the negligence of the defendants’ servant and that her intestate was free from contributory negligence.

The defendants moved to dismiss at the close of the plaintiff’s case, and, standing upon their exception, put in no evidence. The judgment and order appealed from should be reversed and the complaint dismissed, with costs to the appellants.

Ingraham, P. J., Scott, Dowling and Hotchkiss, JJ., concurred.

Judgment and order reversed and complaint dismissed, with costs to appellants. Order to be setted on notice.