#### Nellie Vandenbout, as Administratrix, etc., of Marinus Vandenbout, Deceased, Plaintiff, *v.*Rochester Railway Company, Defendant.

Fourth Department,

January 27, 1909.

Railroad.— negligence —death, caused by surface car operated from rear platform— contributory negligence — right of pedestrian to cross tracks — erroneous nonsuit.

Action to recover for the death of a person who on alighting from a surface car was struck and killed by another car which was operated by a motorman from the rear platform, the conductor being stationed on the front platform. Evidence examined and *held,*that the jury might have found the defendant negligent a'nd that a nonsuit was error.

A pedestrian has a right to cross the tracks of a street railroad even though he see a car coming, and while obliged to use reasonable care, is not bound as a matter of law to wait until the car which is approaching him has passed.

*845Pedestrians may properly cross the tracks oí such railroad although a car is known to be approaching a crossing if there be reason to suppose that the car will stop at the crossing or slow down.

The rule as to the sufficiency of evidence necessary to establish the absence of contributory negligence is not held to so strictly in death cases as in cases where the injured person is alive and a witness upon the trial.

Evidence examined and *held,*insufficient to establish the contributory negligence of the decedent as a matter of law.

McLennan, P. ,T., and Bobson, J., dissented.

Motion by the plaintiff, ¡Nellie Vandenbout, as administratrix, etc., for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon a nonsuit granted after a trial at the Monroe Trial Term in April, 1908.

*John Van Voorhis'*Sons, for the plaintiff.

*Harris, Havens, Beach & Harris,*for the defendant.

Williams, J.:

The exceptions should be sustained, and the motion for a new trial granted, with costs to the plaintiff to abide event.

The action was for a death, alleged to have resulted from the negligence of the defendant.

The nonsuit was put by the trial court specifically upon the ground of contributory negligence, as appears by the case and exceptions.

No particular attention need be given to the question of the defendant’s negligence. It was alleged in the complaint and proved on the trial that the car which struck the deceased was being unnecessarily operated with the motorman and the power applied on the rear instead of the front platform, the conductor being on the front platform and operating the brake and giving signals to the motorman. The power could not be operated from the front platform because that part'of the car was crippled. It could, however, have been turned around so that the motorman and the operation of the power could have been upon the front platform. It was also alleged in the complaint, and there was evidence given on the trial, that the car was being run at an excessive rate of speed while crossing a street just prior to the accident, and was not under control, so that *846it could not be stopped upon an accident being imminent. From these and other considerations, it might have been found by the jury that the defendant was guilty of negligence which resulted in the death. The real question is that of contributory negligence. We think this question was also for the jury, and should not have been determined by the court as matter of law.

The deceased rode to the place of the accident upon a car of the defendant going westerly on Main street. When the westerly-bound car approached Circle street it ivas slowed down for him to leave the car on the westerly crosswalk, its usual place of stopping. Deceased, however, stepped off the car on or just east of the easterly crosswalk and started to cross over to the other side of Main street, in front of the easterly-bound car. If the car approaching him had been running at a proper rate of speed in crossing Circle street, the deceased would have had abundant time to cross over safely, and he would have crossed safely as it was, except that he chanced to slip down upon the easterly track just before he stepped off of it. His progress was impeded by his fall, and before he could get up and off the track the car struck him. Ho witnesses saw deceased after he left the west-bound car and while he was on his way across the street, until he had fallen and was in the act of getting up, and then he was seen by the boy witness. The nonsuit was granted at the close of the plaintiff’s evidence, and, therefore, the conductor who was on the front platform of the car, and who must have seen him on his way over across the street, was not sworn. It is unfortunate that the nonsuit was granted before all the evidence of both parties had been taken, so that the full facts might have been known and none of them loft to inference. The deceased was on his way to his work. He had a right to cross over the tracks at the crossing, even though he saw the car coming. He had the same right to use the street that the defendant had. He was under obligations to use care, it is true, but he was not bound, as a matter of law, to wait until the car, which he may have seen approaching him, had passed by. Foot passengers may properly cross the tracks though a car is known to be approaching the crossing, if there is reason to suppose the car will stop at the crossing, or will slow down and thus give time for such crossing. This car was moving rapidly and did not slow down for this crossing. The defendant had a right to assume *847that the car would slow down, and it could not be said, as a matter of law, that he knew how fast it was coming and that it would not slow down, when he started to cross over. The reason why cars are required to slow down at crossings, and to be under control, is that pedestrians have a right to cross there and are liable to be crossing and there is liability to accident unless the car can be easily and readily stopped. The deceased is not here to tell his story, to say what he saw, what he knew as to the approach and the speed of the car, why he attempted to cross over and how he happened to slip down and to be thus caught by the car.

The rule as to the sufficiency of the evidence necessary to establish the absence of contributory negligence is not to be held so strictly in death cases as in cases where the injured persons are alive and witnesses upon the trial.

In view of all these suggestions, we think the plaintiff had a right to the verdict of the jury upon the question of contributory negligence as well as that of defendant’s negligence, and, therefore, a new trial should be granted.

All concurred, except McLennan, P. J., and Bobson, J., who dissented.

Plaintiff’s exceptions sustained and motion for new trial granted, with costs to plaintiff to abide event.