The action was brought under the statute to recover damages for negligence causing the death of plaintiff’s testator. The question of the defendant’s liability was submitted to the jury, which returned a verdict in favor of the plaintiff for $1,300, and it is from the judgment thereupon entered, and from the order denying a new trial, that this appeal is taken.
The appellant insists that the evidence failed to show any negligence on the part of the defendant’s driver, and, in addition, not *564only failed to show circumstances from which the absence of contributory negligence on the part of the deceased might be fairly inferred, but affirmatively proved such negligence on his part. In disposing of these questions, an examination of .all .the evidence and a brief statement of the occurrences which led up to the death of the plaintiff’s testator are rendered necessary.
It appears that the deceased, who was between sixty-five -and seventy years of age, on the afternoon of November 2, 1894, between five and half-past five o’clock, left his home in West Twenty-fourth street, east of Sixth avenue, and started westerly on the upper sidewalk of that street to' go to a store on Twenty-fourth street, between Sixth and Seventh avenues. On reaching Sixth avenue, what occurred is detailed by a doctor, who testified that he was riding down town on the platform of a Sixth avenue surface car, and that when about to alight at the upper crosswalk of Twenty-fourth street, he saw the decedent standing there between the car tracks to the east, waiting for the car upon which the witness was to pass; that the defendant’s horse and wagon was near the lower crossing, coming up on the car track on which the decedent stood, “at a good fast trot,” .about seven miles an hour; that it approached the upper- ’ crosswalk without slackening speed, and, when near the decedent, who was between the two rails of the éasterly tracks, the latter, seeinghis danger and finding his passage obstructed by. the car going down on the westerly track, endeavored to save himself by running in a northerly direction, but, being too slow to avoid the horse and wagon, he was struck, thrown down and run over; that the horse and. wagon did not stop till they had gone half a block away.
The version given by the defendant’s driver was, that as he was. about to cross Twenty-fourth street he looked ahead and the track, was clear; he took a glance up the street each way to see if there-was any wagon crossing, and when he looked ahead again he saw the deceased within about three feet of the track, walking very slowly, and the instant he saw him he shouted to him and checked his-horse; that the- man was looking straight ahead to the front, going-west; that when he first_saw the man he was across the down-town crossing- of the street and his horse was about ten feet from the-deceased ; that as soon as he saw the deceased he started to check the horse, which- seemed to slacken up slightly; that the. deceased *565did not seem to notice anything, but walked deliberately in front of the horse ; that he succeeded in checking the horse before he reached ' the crosswalk, but could not bring him to a standstill; that he passed the deceased before stopping the horse, and then pulled him to the side of the curb in front of the store two doors from the corner. He further stated that it was almost dark at the time.
The only other witness examined said that when he first saw the deceased the defendant’s horse was about two feet from the downtown crossing going up, and the deceased was on the up-town crosswalk about ten feet away from the car track on the east side of the avenue, about half way between the curb and the car track, walking towards the west. He next saw the deceased under the defendant’s wagon, and he turned his horse one side and stopped him before he came to the deceased. When he stopped his horse he was about half way to the upper crossing. He had been driving behind the defendant’s wagon for at least a block and was going at the same rate of speed.
We think that upon this evidence it was clearly a question for the jury, because if they believed the testimony of the doctor, who was an entirely impartial witness, it would appear that the deceased while on a crosswalk, where he lawfully had a right to be, and in attempting to cross the street, was run down by a wagon which was driven at a lively pace, so lively that, according to the testimony of the driver himself, although he saw the deceased some distance away, he was unable to check the horse until after he had run down the deceased and gone some distance beyond the upper crosswalk. We think that the jury were clearly right in holding upon such testimony that the driver was negligent, because at a time when, according to the driver, it was almost dark and necessary to keep a sharp lookout for pedestrians and for other vehicles, he approached the street crossings at a pace which prevented his being able, though he saw the possibility of danger, to avert it. ,
Nor do we think the record wanting in evidence from which the jury had a right to conclude that the decedent was free from contributory negligence. He had a right to cross the avenue, and having got between the two rails of the easterly track, he was obliged to stop to permit a car ■ going down town to pass, and while in that *566position lié. turned and discovered the rapidly approaching wagon, which he endeavored to avoid byrunningtin a.northerly direction.
This is not a case then, of one placing himsélf in a position of danger, hut of a person crossing an avenue which he had the right to do, who, finding his passage obstructed-by a car, and being placed in á position of danger by an approaching wagon, does what seems to him best under the circumstances to avoid injury. There was no time for deliberation; and that the decedent was anxious, to secure his safety is. evidenced by his running in ■ a northerly direction, which was the only way he could escape the wagon, unless he returned to the easterly side, of the avenue. Whether the latter would have been the more prudent course is entirely' immaterial. One who under such circumstances exercises the best judgment of which he is capable cannot be said to have been guilty of negligence or want of care. ■ If the position of the appellant is right, that the decedent was-bound to see the approaching wagón and bound to keep out of its way, and to assume that it would not slacken its pace, then we must reach a conclusion that pedestrians have no rights in the streets which the drivers of vehicles are bound to respect. We think that there was ample evidence to support the verdict, not only upon the ground of the, driver’s negligence, but also that the decedent in no way contributed by his negligence to his death, and that-.the verdict, under the facts here appearing being moderate, should not be disturbed. ' ' .
The judgment should, therefore, be affirmed, with costs.-
Yan Brunt, P. J., Williams, " Patterson and Ingraham, JJ., concurred. .
Judgment affirmed, with costs.