The plaintiff, as a witness in his own behalf, states his case substantially as follows:
In March, 1866, while walking on the northerly side of Fourth street, in the city of New York, toward Second avenue in that city, and when within eleven yards of the curb-stone along Second avenue, he saw a street car on that avenue, just above Third street, approaching the crossing over the avenue which he was about to pass (the distance between Third and Fourth streets, as appeared by the map given in evidence, was 200 feet, added to which was the space occupied by the two streets), at the same time he saw this car approaching him from below Third street he saw a horse and cart, then some fifty or sixty feet behind the street car, approaching the same crossing; that the car was moving, as he said, rapidly, at the rate of some six miles per hour, and *Page 249 the horse and cart with so much greater speed that when the car and cart had come near Fourth street, the horse and cart had lapped upon the farther side of the car from the plaintiff so far as to be out of his sight. It also appeared from uncontradicted evidence, that the avenue in rear of the car was clear for a long distance, nevertheless the plaintiff believing he could cross safely in front of the car undertook to do so, and after passing the heads of the horses by which the car was drawn, came in contact with the horse and cart, and received the injury complained of. In this he clearly lacked the exercise of ordinary prudence; a momentary delay at the crossing while the car was passing the distance of thirty-four feet, shown to be the space occupied by the horses and car, moving at the rate of six miles per hour, and the horse and cart at much greater speed was, in my opinion, negligently omitted, and thus the plaintiff contributed to the injury of which he complained and ought to have been nonsuited.
All concur.
Judgment reversed.