#### Mary E. Plunkett, Respondent, *v.*The Brooklyn Heights Railroad Company, Appellant.

Second Department,

December 30, 1908.

Railroad — negligence — injury to pedestrian crossing tracks — contributory negligence of aged person.

The plaintiff, a woman sixty-five years of age, was struck and injured by a surface car in a rural district while attempting to cross the tracks at night. The car was going at great speed and the view was somewhat obstructed by adjoining excavations. On all the evidence, *held,*that a judgment for the plaintiff should be affirmed.

On the question of contributory negligence in failing to see an approaching car, the dullness of faculties of an aged person must be taken into consideration.

Hooker, J., dissented, with opinion.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of March, 1908, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 15th day of April, 1908, 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.

*Benjamin G. Paskus,*for the respondent.

Gaynor, J.:

The case seems to have been one for the jury. The plaintiff, an aged woman of 65, was crossing Uostrand avenue on Lincoln Road, which is a rural district. The car that hit her was going south on Hostrand avenue. She crossed from the east, crossed the first track, and had all but cleared the next one, on which the car was *573running, when she was hit. She was crossing by the far crossing, so that the car came across Lincoln Road before hitting her. There was ample testimony that the car was going at great speed over the crossing. The motorman even says it was going 7 or 8 miles an hour, which was a high speeed for a crossing, if not even between blocks, and the jury could well have found that it was going much faster. The only passengers in the car, three, say it ran a block after hitting the plaintiff before it was brought to a standstill, although the motorman at once set about stopping it, and that the trolley pole was turned, and the car ran back to the place where the plaintiff was hit.

Whether the plaintiff was negligent cannot be said as matter of law. She says she looked when at the curb, and again before getting to the track on which she was hit, to see if any car was coming, but saw none. It is said that if she had looked she must have seen the car, and that as she did not see it, it is proved that she did not look, as in the *Dolfini*case. But that does not follow in this case. The dullness of the faculties of the aged have to be considered. It was also in the night time and at a place not much lighted. There was a headlight on the car, but there was a sewer being dug through Lincoln Road across Hostrand avenue, the earth from which was piled up *á*feet high from the side from which she came, from the curb nearly up to the car tracks, and may well have interfered with her seeing the headlight, for she had to walk alongside of it, and over a crossing which was littered up also. Her situation was distracting. The car was a combination car, so-called, namely, enclosed, but without glass windows, but only leather shades, which are pulled down by the passengers or conductor in stormy or chilly weather, and there is evidence that some of them, at least, were down, it being a chilly night in October; so that there may not have been much light visible from the car, except from the headlight, And if the car was going at the high speed the jury could have found, she may not have seen it only because she did not look far enough to see a car coming to a crossing at such a speed, and she was not obliged to look further than a reasonable distance, as people at crossings ordinarily do.

The judgment should be affirmed.

Woodward, Jenks and Miller, JJ., concurred; Hooker, J., read for reversal.

*574Hooker, J. (dissenting):

Upon her own evidence the plaintiff must fail for omission to show absence of contributory negligence. This question must, of course, be considered in the light of her admitted conduct, at least as against her. There were double street car tracks which plaintiff was endeavoring to cross; she crossed the first track (rail), the second and the third, and was struck by defendant’s car as she was upon the fourth; she says she looked before leaving the curb, which was careful, and again looked both ways when she was between the third and fourth rails, but saw nothing; the failure comprehendingly to see was careless; for although it was night the car bore a headlight, there was nothing to obstruct her view, and she was directly in front of the car, which was so close that she admits she could have stepped out of harm’s way had she known the car was there. It was commendable for her to look while between the the third and fourth rails, but this is not enough to excuse her carelessness in failing to observe what the look should have disclosed. *(Dolfini*v. *Erie R. R. Co.,*178 N. Y. 1.)

The judgment should be reversed and a new trial granted.

Judgment and order affirmed, with costs.