#### Charles H. Kayser, Respondent, *v.*New York Mail Company, Appellant.

(Supreme Court, Appellate Term,

February, 1912.)

Negligence — Contributory negligence — Acts or omissions constituting • negligence — Proximate cause of injury — Actions.

A pedestrian crossing the street is not required as matter of law to look up and down the street; and, in a case of injury to him because, of .an alleged injury to him by another, the question is, did he exercise due care in the circumstances.

The evidence, ip an action to recover for personal injuries to plaintiff who testified that about half-way across the street he was struck by defendant’s wagon, considered, and held, that the questions of negligence by the defendant and contributory negligence by the plaintiff were properly left to the jury.

Appeal by the defendant from a'judgment of the Municipal Court of the city of Hew York, borough of Manhattan, first district, rendered in favor of the plaintiff after a trial before the court with a jury.

Amos H. Stephens (Louis Cohn, of counsel), for appellant.

John B. Doyle, for respondent.

Pendleton, j.

The action is for damages for personal injury, the result of being run over by a wagon belonging *475to defendant. The accident happened about half-past six on the evening of February 15, 1911, near the northeast corner of Dey and Greenwich' streets. The plaintiff was proceeding north on Greenwich street; defendant’s wagon was going west on Dey street at a fast trot and struck plaintiff near the north side of Dey street, just before he reached the' sidewalk. Plaintiff testified that, before starting to cross Dey street, and again when about half-way across, he looked up and down the street and did not see the wagon; that he could see to Church street, which was some two hundred feet to the east on Dey street, and'to the Hudson Terminal branch post-office, on Dey street, between Church and Greenwich streets, about 100 feet east of Greenwich street; that it was muggy weather and dark; and that the lights were lighted and there was an electric light at the crossing of Dey and Greenwich streets. The court left the questions of negligence by defendant and contributory negligence by plaintiff to the jury on the evidence. This disposition of the. question of contributory negligence is the error complained of.

Defendant contended, by motion to dismiss on plaintiff’s evidence, and again on all the evidence and by his request to charge, that the fact that plaintiff looked up and down the street and did not see the wagon and was struck before he reached the sidewalk showed negligence *per se*on plaintiff’s part; and defendant relies on Dolfini v. Erie R. R. Co., 178 N. Y. 1. It was held in that case that, where plaintiff testified that before crossing a steam railroad track he looked up and down and did not see the train, where it appeared by the uncontradicted testimony that it was a clear day and the view unobstructed and the circumstances such that if he had looked he must have seen the train, his testimony was incredible as matter of law and it must be held that he had not looked, and hence, under the rule that a person about to cross a steam railroad is bound to look, was guilty of negligence *per se*and the complaint should be dismissed. The - case here is very different. Hnder the conditions of the light and weather and in view of the testimony of there being a branch post-office *476in Déy street, there is nothing incredible in plaintiff’s testimony, that he did not see the wagon; but, if there were and if it were assumed he did not look up and down, the rule requiring a person so to do applies only to steam railroads and not to street crossings. Reens v. Hail & Express Publishing Co., 10 Misc. Rep. 122. In street crossings there is no such absolute rule'; it is always a question of due care under the circumstances. Baker v. Close, 204 N. Y. 92.

The judgment should be affirmed, with costs.

Giegebich and Lehman, JJ., concur.

Judgment affirmed, with costs.