The plaintiff was injured by being struck by a car of the defendant’s road on Third avenue, just below One Hundred and Thirty-eighth street, in the city of New York. At that point there is a double track, the cars going from the Harlem bridge to the north, running on the east track, and the cars going from the north towards Harlem bridge, running on the west track. The plaintiff attempted to cross the street, not upon any street crossing, but in the middle of the block from the west to the east side. He stepped out in the street, says he looked both ways, saw the car coming *196from the south, which must have been upon the east track, the track farthest from him; stopped to let that car pass, when the car coming down upon the west track, the track nearest to the witness, struck him. The evidence is quite clear that the car in question was brilliantly lighted with electricity, and at the time of the accident, on the 19th of August, 1893, a little before eight o’clock in the evening, it was just about dusk. It was a foggy night and had been raining. This condition of the weather might have prevented the motorman from seeing the plaintiff, but could not have prevented plaintiff from seeing the lighted car. Both the witnesses who testified to seeing plaintiff distinctly saw the car. One, who saw the plaintiff leave the sidewalk and start to cross the street, saw the car coming down town, and at that time said to his friend who was with him, “ that old man is going to get hit; ” and the witness said that “ the occasion of that remark was because the car was coming so fast I thought if he (the plaintiff) kept on his course, if he did not stop before he got to the track, the car would just about strike him.” There was nothing to obstruct plaintiff’s view of the approaching car. It was brilliantly lighted and could be easily seen; and in full view of this car the plaintiff started to cross the street, waited until a car upon the other track farthest from him passed, and then, without paying the slightest attention to the approaching car, placed himself in such a position that he was struck by it. There was no evidence to show that he was upon the track in front of the car that struck him for any appreciable time before he was struck; nothing to show that the motorman of the car that struck him could have stopped the car after he was upon the track, and nothing from which an inference of negligence on the part of the defendant could be drawn. The plaintiff does not state that he stopped upon the west track to let the north-bound car pass, nor how long it was after the north-bound car passed before the southbound car struck him. The burden of proof is on the plaintiff to show that the defendant was negligent and that he (the plaintiff) was free from contributory negligence. Neither of the witnesses saw the car when it struck the plaintiff. A witness testified that, while the car going north was ringing its bell, the car going south was not; but as the car was not at the crossing at the time of the accident, there does not seem to be any particular reason why the-*197bell should have been rung. It has not yet been held that it is the duty of a railroad company to constantly ring its car bells from one end of the route to the other. The speed of the car is also testified to, but there is no evidence as to how fast the car was going or that its speed exceeded that allowed.
We do not think that this case can be distinguished from the case of Fenton v. The Second Avenue Railroad Company (126 N. Y. 625). In that case the court said : “ This accident did not happen at ■a street crossing, but between the upper and lower crossings of the street, and hence the drivers did not have the same reason to expect any one there as at a street crossing. * * * Street railway cars have a preference in the streets; and while they must be managed with care, so as not to carelessly injure persons in the street, pedestrians must, nevertheless, use reasonable care to keep out of their way.”
Accepting the story as told by the plaintiff as true, it is quite apparent that this accident was not the result of any carelessness of the defendant, but was the result of the plaintiff’s attempting to walk across -this railroad track without looking for an approaching car upon the west track, and without using any care to keep out of the way of the car that struck him. If, after waiting to allow the north-bound car to pass, he had waited but a few seconds, the car would have passed and he could have then crossed in safety. He chose, however, to attempt to cross the track without waiting to see whether or not a car was approaching, and the accident was thus the result of his own carelessness and not the carelessness of the defendant’s agent, who could not have any reason to expect that a person would attempt to cross the street at that particular point, and who could not, from the evidence, be charged with having neglected to see the plaintiff in time to stop the car.
The judgment must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide event.
Van Brunt, P. J., Barrett, Rumsey and O’Brien, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.