#### REICH v. UNION RY. CO. OF NEW YORK CITY.

(Supreme Court, General Term, First Department.

May 18, 1894.)

Negligence—Evidence.

Where it appears that plaintiff’s intestate was guilty of contributory negligence in attempting to cross defendant’s track in front of the car by which he was killed, evidence as to the distance within which the motorman could have seen him is immaterial.

Appeal from circuit court, New York county.

Action by Elise Reich, as administrator of William Reich, deceased, against the Union Railway Company of New York City for the death of plaintiff’s intestate. The complaint was dismissed, and plaintiff appeals. Affirmed.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

G. W. Smith, for appellant.

W. S. Cogswell, for respondent.

VAN BRUNT, P. J.

This action was brought to recover damages because of the killing by one of the defendant’s cars of the plaintiff’s intestate. It appeared upon the trial that upon the evening in question, which was pleasant but dark, the deceased was playing with some comrades in the street at a considerable distance from the crossing. There was a crowd of youngsters chasing the boy. A car was going north at about seven miles an hour, making a stop at the crossing. There was also a car going south. Just as the tail end of the northbound car was passing the boy, he left the east sidewalk to go across Third avenue diagonally, tending towards the south, and, when he stepped on the southbound track, the northbound car was about 25 to 30 feet away, and the southbound car was about 4 feet from him. Before the boy came upon the southbound track, the motorman shouted, and rang the bell, the other boys at this time being 6 or 7 feet away from him. One of the witnesses testified that when the motorman shouted, and rang the bell, the deceased attempted to go across the track. He was struck by the car, and run over, and killed. In another place one of the witnesses stated that the boy ran within 8 feet from the rear dashboard of the northbound car, and that this car cut off bis view of the car coming south. Upon this evidence the court dismissed the complaint, and, from the judgment thereupon entered, this appeal is taken.

The only question which seems to be at all important upon this appeal is as to whether the court was justified in excluding the questions put to the witness Klebs as to the distance at which this boy could have been seen by the motorman of the southbound car, the southbound car and the northbound car being in the position stated in the questions propounded. It is undoubtedly true that expert evidence will not be allowed where the facts can be stated and described to the jury in such a manner as to enable them to form a correct judgment thereupon. But where it is im*1106possible to so state the facts that the jury may be able to comprehend them, and no better evidence than the actual observations of the witness is attainable, then they become admissible. In the case at bar it was claimed, on the part of the plaintiffs, that the question as to how far the motorman of the southbound car could see the deceased after the passing of a northbound car was material. But it seems to us, from the evidence in the case, that the motorman of the southbound car had no right to expect or anticipate the fact that this boy was going to cross the track in the middle of the block. He undoubtedly, under the rules, was required to be more vigilant at the crossing, where he might naturally expect parties to cross the tiack, than in the middle of the block. Furthermore, if the motorman could see the boy in the dark, it being conceded that it was dark, the boy certainly could see the car, a very much larger and more conspicuous object; and he, crossing in the position in which he was, was bound to look and see that the way was clear. If the car was within sight sufficiently long for the motorman to have avoided the boy, it was in sight sufficiently long for the boy to have avoided the car. It appears from the evidence that, as soon as the motorman saw that the boy was going to cross the track, he warned him, and the only result was an attempt upon the part of the boy to rush in front of the car, and go over; when he first presented himself in front of the car, he being only four feet away. Under the rules laid down in the case of Fenton v. Railroad Co., 126 N. Y. 625, 26 N. E. 967, under such circumstances a recovery cannot be had. Therefore the evidence which was excluded seems to have been immaterial. It may further be suggested that, in the questions which were put, no one of them in its facts coincided with the testimony which had been introduced showing the position of these cars and the boy previous to and at the time of the happening of the accident. The case seems to be entirely free from any proof of negligence upon the part of the motorman, and shows that the accident was the result of the carelessness of the deceased. Judgment should be affirmed, with costs. All concur.