On the weight of evidence, plaintiff's case seems weak, but that is not our concern. The question presented is whether it is contributory negligence as a matter of law for a pedestrian on a street crossing on one side of a street to walk at a good fast gait in front of a moving trolley car which he sees from the strip between the double tracks in the middle of the intersecting street, approaching the opposite crossing, thirty feet away, rapidly and with unslackened speed, when he is struck by the car just as he is stepping off the further rail through the negligence of the motorman in failing to keep his car under control and slacken his speed. We are not to disbelieve or reject plaintiff's evidence unless it is incredible as matter of law. Does such a one, exercising judgment and acting on the not unwarranted assumption that the motorman will also exercise due care, without notice to the contrary, put himself so far outside the category of reasonably prudent persons as to require the court to say that in law his act was one of heedlessness and inattention? If reasonable men may reasonably differ on the legitimate conclusions to be drawn from the evidence, the question is for the jury, *Page 29 subject to the power of the trial court or the Appellate Division to order a new trial if the verdict is contrary to the evidence. (Queeney v. Willi, 225 N.Y. 374, 378.) We are about to hold that the trial justice and the jury on two trials and the majority of the Appellate Division have, with their daily experience in crowded city streets, failed to comprehend what the conduct of a prudent man thus situated might be; that we must fix an absolute standard of proper care to prevent a recovery.
The law does not say that one is negligent because he sees a street car approaching a street crossing set aside for the crossing of foot passengers, not close upon him, miscalculates the danger and goes ahead. He may still be free from fault. (Knapp v. Barrett, 216 N.Y. 226.) Plaintiff is to fail here, not because of the rule, but because of the application of it. The car is said as matter of law to be so near as to be close upon him. But it was not so near if his evidence is credible. This standard of dangerous nearness may do for the leisurely life of rural communities, but in the rush of city life, with rapidly moving vehicles crowding the streets, the prudent man at a street crossing where he has a right to be may be said to act prudently although he does not refrain from passing in front of street cars and automobiles approaching the other side of the street, but hurries along on the reasonable assumption that those in control will be careful enough to avoid him. If it is prudent for him to be on the street he may prudently proceed without waiting for the procession to pass by. The question of proper care is thus ordinarily a question of fact. In Buhrens v. Dry Dock, E.B. B.R.R. Co. (53 Hun, 571; 125 N.Y. 702) when plaintiff reached the corner of the street he saw the defendant's car approaching the crossing at an excessive rate of speed yet he pursued his course and was struck. VAN BRUNT, P.J., said.
"It appears that the plaintiff was driving slowly, and that all of the wagon except the hind wheels cleared the *Page 30 car, which shows that the plaintiff's opinion that he could pass the car safely was not entirely without foundation, and if the latter had been properly managed would have been undoubtedly correct.
"Assuming that the plaintiff saw the car approaching very fast, still there was nothing to indicate to him that it was not under control of the driver, and he had a right to believe that the latter would exercise proper care. The plaintiff supposed he would clear the car, and, although subsequent events proved that he erred in this conclusion, a mere error of judgment was not necessarily negligence when the proof shows that had the car been properly managed, as the plaintiff had a right to assume it would be, he would have been enabled to cross in safety.
"From these facts it being possible to draw an inference that the plaintiff had not been guilty of negligence in attempting to cross, under the circumstances disclosed, the question of negligence necessarily became a question for the jury, and it was for them to say whether the plaintiff had proved himself to be free from negligence or not.
"It is not the province of the court to determine this question, where it is possible to draw different inferences or conclusions from the facts disclosed." (p. 573.)
A glance toward the opposite side of the street, a calculation that the approaching vehicle not yet on the crossing will not run one down, which it would not except for carelessness and indifference to one's rights on the part of the driver, that may or may not be ordinary care under ordinary circumstances, or the circumstances may compel the inference of carelessness. To hold that such care cannot be enough in this case would seem to overthrow the practical application of the rule of reciprocal care at street crossings laid down by trial courts in street railroad cases for the guidance of juries for the past generation and to adopt the rule applicable to accidents in the middle of the block where the pedestrian is charged with additional vigilance (Ploxin v. B.H.R.R. Co., *Page 31 171 App. Div. 925; 220 N.Y. 609), and to steam railway crossings where the engines are not under control and do not slacken speed.
The judgment appealed from should be affirmed.
HISCOCK, Ch. J., COLLIN and ANDREWS, JJ., concur with McLAUGHLIN, J.; POUND, J., reads dissenting opinion, with whom HOGAN and ELKUS, JJ., concur.
Judgments reversed, etc.