#### WALLS v. ROCHESTER RY. CO.

(Supreme Court, General Term, Fifth Department.

December 28, 1895.)

1. Street Railroads—Persons on Track—Contributory Negligence.

Whether a person struck by a street car at a crossing just as she was-about to step off the track was guilty of contributory negligence is for the jury; it appearing that, when 4 feet from the track, she saw the car 90 or 100 feet away approaching; that she then started to run across; that the car was going unusually fast, and faster than allowed by ordinance; and that, but for the slippery condition of the track, the car could have-been stopped in a distance of 30 or 40 feet; and the evidence being conflicting as to whether any effort was made to slacken the speed of the car..

2. Excessive Damages.

A verdict for §1,500 for the death of a widow, 72 years old, in good health, strong and hearty, and who did the work for the family, consisting, of herself, son, and daughter, is not excessive.

Adams, J., dissenting.

Appeal from Monroe, county court.

Action by John E. Walls, administrator of Catharine Walls, deceased, against the Rochester Railway Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Argued before LEWIS, BRADLEY, WARD, and ADAMS, JJ.

Charles J. Bissell, for appellant.

Thomas Raines, for respondent.

*1103LEWIS, J.

The intestate, Catharine Walls, was killed while attempting to cross the tracks of the defendant’s railway on Monroe avenue, in the city of Eochester, by a car belonging to, and operated by, the defendant. The defendant has a double track in Monroe avenue, from Clinton street easterly on'beyond Chestnut street. Chestnut street enters Monroe avenue at right angles from the north. Between the points mentioned, the railroad tracks run practically east and west, upon quite a down grade towards the east; so much so that a car will run by its own gravity. On the 1st day of October, 1891, between 3 and 4 o’clock in the afternoon, the plaintiff's intestate left a store on the north side of Monroe avenue, one door west of Chestnut street. She walked to Chestnut street, and started to cross to the south side of Monroe avenue by way of the west crossing of Chestnut street. She crossed the northerly, track, and, when nearly across the southerly track, she was struck by one of the defendant’s cars, running easterly upon the southerly track, and received injuries from which she died in a few days.

The evidence justified the jury in finding that the defendant’s negligence caused the injury to the deceased. The serious question, and one upon which we have had some doubt, is whether the deceased was shown to have been free from contributory negligence. The evidence on that question is quite conflicting, as is not unusual in such cases. Witnesses of such accidents are usually under great excitement, and are quite likely to differ when relating what they saw. As the deceased approached the crossing, she was seen to look in the direction of the approaching car. She undoubtedly saw it, and evidently concluded that she would have time to pass over the tracks with safety before the car arrived at the crossing. She presumably misjudged the speed of the car, which the evidence tends to show was moving quite rapidly, at a much greater speed than the ordinance of the city permitted, and more rapidly even than was usual for cars passing along that down grade. The witness G-roh was standing in the doorway of his store, a distance of from 90 to 100 feet west of the cross walk on which Mrs. Walls was walking. When he first noticed her, she was going south upon the cross walk, and was about to step on the north track. She then turned her head, and looked towards the approaching car, and continued on; and when she had crossed the space between the two tracks, a distance of about 4 feet, and was about to step on the south track, the car was passing the witness’ store, a distance of 90 to 100 feet west of the deceased. The motorman at that time commenced ringing the gong. The deceased again looked towards the car, and started on a run or trot, as if to hurry across the track. In speaking of the speed of the car, this witness stated that he noticed it was coming down unusually fast; that he was accustomed to observe the speed of cars; and that it was moving faster than the ordinary movement of cars, faster even than they usually run down that grade. He further stated that the usual movement of cars down that grade was quite rapid. He did not notice any change in the speed of the car after the gong sounded until after the accident. There was evidence tending to show that the car was not brought to a stop until *1104It had reached a point about 100 feet east of Chestnut street. The motorman testified that he applied the brakes when he was about 100 feet west of Chestnut street, and that he employed all the means provided for stopping the car. It had been raining that day* and the track was muddy and slippery, which, the evidence shows, made the stopping of the car more difficult. The fact that the motormán was not able to stop the car until it had run some 200 feet tended to corroborate the testimony that the car was running at *quite*a rapid speed. There was evidence tending to show that, if the track had been dry, the car could have been stopped in a distance of from 30 to 40 feet.'

The deceased, manifestly, failed to appreciate the speed of the car when she concluded that she could safely cross the track. She was not in a position to form a correct judgment of its speed, as it was coming directly towards her. Had the car not been running at a speed exceeding the rate fixed by the city ordinance (seven miles an hour), the deceased would have passed over the track safely. Had the motorman, as was usual, slackened the speed of the car when approaching the street crossing, the accident would not have occurred. Had the deceased been one step further on her journey, she would have passed beyond the reach of the car. ■ She was struck by the south front corner of the car. There was evidence permitting the jury to find that after the intestate had passed over the north track, and was about to step upon the southerly track, the car was from 90 to 100 feet distant from the crossing. If this was the situation, she, perhaps, was justified in believing that she could safely cross. After she had made up her mind to cross the southerly track, she evidently saw that there was danger, but, in the excitement of the moment, did not judge correctly as to the situation. Had she understood that the car was running at such a rapid rate, it was a negligent act to attempt to cross, relying upon the motorman to slacken the speed of the car.

Whether the motorman did anything *to*lessen the spéed of the car after he discovered that Mrs. Walls intended to cross the tracks in front of the car was a disputed question. He testified that he did do all he could to lessen its speed. Other witnesses who observed the course of the car testified that they did not observe any attempt on his part to check the speed of the car.

We are, upon the whole case, of the opinion that the question of contributory negligence was properly submitted to the jury.

The verdict was for $1,500. It is claimed by the appellant that it was excessive. Mrs. Walls was a widow, about 72 years of age, in good health. She had not been subject to any sickness; was strong and hearty. She did the general housework for the family, consisting of herself, son, and daughter. We cannot see that, under the circumstances, the verdict was excessive. We see no reason for disturbing the verdict.

The judgment and order appealed from should be affirmed.

BRADLEY and WARD, JJ., concur. ADAMS, J., dissents.