#### Ruth Tjaden, an Infant, by Sara Tjaden, her Guardian ad Litem, Respondent, *v.*The Brooklyn Heights Railroad Company, Appellant.

Second Department,

June 16, 1911

Railroad — negligence — injury to pedestrian — contributory negligence.

Where in an action by a girl ten years old to recover for injuries caused by the defendant’s car, it appears that plaintiff, who was accustomed to cross trolley tracks, although she saw the car which struck her coming very fast stepped upon the track directly in front of it, she fails to show that she was free from contributory negligence, and a judgment in her favor will be reversed.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of said county on the 10th day of November, 1910, upon the verdict of a jury for $250, and also from an order entered in said clerk’s office on the Ith day of November, 1910, denying the defendant’s motion for a new trial made upon the minutes.

*D. A. Marsh [George D. Yeomans*with him on the brief], for the appellant.

*Burt L. Rich [Martin T. Mantón*with him on the brief], for the respondent.

Hirschberg, J.:

The plaintiff has recovered a verdict for $250 for injuries received in being picked up by the fender of one of defendant’s trolley cars on Matbush' avenue while she was attempting to cross the avenue at a point nearly opposite Lenox road. Lenox road extends to Matbush. avenue from the east, but does not cross it, and the principal-point urged by the appellant is that there was a failure to show freedom from contributory negligence.

The appellant’s claim seems to be quite undisputable. The evidence leaves no room for doubt that the plaintiff saw the *582car which, injured her; she saw that it was coming very fast, although the motorman made an ineffective attempt to check the speed, and she stepped upon the track directly in front of the car as it was coming along and hut a moment before it struck her. She was about three months less than ten years of age at the time and was accustomed, to cross the trolley tracks. She testified that when she left the curb she looked both ways, saw-no Car on the nearest track, the one leading to Hew York, but did see the car which struck her and which was on the second track, going toward Bergen Beach. At that time it was a little above the middle of the block. She saw it a second time just as she was about to go upon the second track, and she proceeded onward without looking again. The precise language of her testimony upon the subject is as follows: *u*Q. Did you see it the second time ? A: Well, I saw it about ten feet from where I was standing, from where I was walking, then I proceeded, before I knew it, it was upon me. . When I saw. the car ten feet from where I was, I was on the second track. When I saw the car on me I went on, the first thing I knew it took me up. I was about right near the last track, the last rail when it picked me up. 3⁄8 3⁄8 3⁄8 When I looked’ the second time I was between the second, rail of the first track, just near the second rail.' 3⁄8 3⁄8 3⁄8 At that time I say the car was ten feet away and I kept .right .on walking and the car was coming fast, yes, sir. Q. Or was it coming fast? . A. Well, it tried to slacken up. I walked right on, I wasvnot looking then, I walked right on. That is when I was on' the second rail of the track that goes to New York, I saw the car ten feet away, and I did not look again, and kept right on walking. That is what I mean to say. That is exactly as I mean it.”

Her evidence is corroborated by two witnesses who testified in her behalf, one as follows: *“*Q. You say she was three feet away from the track when the car was fifteen feet away, running twenty miles an hour? ’A. Yes, sir. She did not stand there,. three feet away, she continued Walking on and the car kept coming on. Q. Now, when she reached the track, the first rail of the track, that the car was on, where was the car ? A. I don’t know what to say in that case,- it is so close I *583don’t think anybody could really state. Why the car was a foot away, ,1 suppose, it hit her at the time.” The other witness testified as follows: “ I mean when she went on the track that she was struck on, the car was probably three or four feet away, the car was coming pretty quick, it was coming, I should judge about fifteen or twenty miles an hour.”

It needs no citation of authority to establish the proposition that absence of contributory negligence is not proven where the plaintiff, seeing a car coming very fast, steps upon the track immediately in front of it as it comes along. No clearer case of contributory negligence could be made out, and it follows that the judgment and order must be reversed.

Jenks, P. J., and Burr, J., concurred; Woodward, J., dissented; Rich, J., taking no part.

Judgment and - order of the County Court of Kings county reversed and new trial ordered, costs to abide the event.