The plaintiff, who describes herself as a strong, active woman, while attempting to cross the tracks of the Third Avenue Railroad Company, in the city of New York, was struck by a car and injured. The defendant insists that there was no evidence to justify a finding by the jury that the accident was caused by its negligence, or that the plaintiff was free from contributory negligence. The case presents the usual conflict of testimony. The jury having found for the plaintiff, the plaintiff is entitled to have the story told by her and her witnesses accepted, and we have then to determine whether, accepting that story as true, the finding that the defendant was negligent and that plaintiff was free from contributory negligence can be sustained. The plaintiff testified that as she was attempting to cross Third avenue from the northwest corner of Ninety-sixth street, she walked to the westerly track, waited there until a cable car fol*432lowed by a truck had passed, then crossed the west track, saw a car approaching from the south, walked across in front of that car, but before getting across was struck and injured. It was daylight, no obstruction preventing the plaintiff from seeing the approaching car, and nothing to interfere with her appreciation of the situation in which she stood, but shé, seeing the car approaching, walked in front of it and was struck and injured.
The learned trial judge held that, if this were all the evidence, it would be his duty to dismiss the complaint upon the ground that the plaintiff took the risk of crossing in front of the car and must bear the consequences of the injury. He, however, held that there was evidence from which the jury could find that the speed of the car was increased, and if that was so, then she was not guilty of contributory negligence as a matter of law, but that it was a question of fact for the jury. It is this decision of the learned judge that the defendant challenges upon this appeal and which we have to consider. The court quite correctly charged the jury that the gripman had the right to assume that the plaintiff would keep out of the way of the car, and to act upon that assumption as long as there was no appearance or indication that the plaintiff would put herself in a position of danger from the car, “ but, from the moment the gripman realized, or in the exercise of proper care and caution, and by keeping a proper lookout or otherwise, should have realized, that the plaintiff put herself in such a dangerous position, from that moment, and not before, it became the duty of the gripman to use all the means which a careful and prudent gripman would have exercised under the same circumstances to avoid injury to the plaintiff.” Is there any evidence to show that this gripman did not exercise-the care and caution of a careful and prudent gripman from the moment that the plaintiff put herself in front of the approaching car ? My examination of the testimony has convinced me that there is no such evidence. In the first place, there is no evidence to show how far the car was from the plaintiff at the time she attempted to cross the track, except the evidence of the witnesses of the defendant, which placed her but a few feet in front of the car. The plaintiff’s case depended upon the testimony of three witnesses, herself, her daughter and her son, a boy twelve years of age. The daughter was the first witness. She said that the plaintiff crossed the first track and *433stood between the east and west tracks, and that while she stood there a car passed her, between the plaintiff and the witness, going down town; that after this car, going down town, passed the plaintiff, she was still standing between the two tracks, and then started to go across, but was struck in the attempt to cross the track by the car going up town. She testified that when she first saw this car it was some distance below Ninety-fifth street, and her mother was • standing on the crosswalk of Ninety-fifth street, and that when she next saw the car it was near her mother, not far away from her, and she was crossing then. At the time the car was between the two crossings the plaintiff was just crossing the up-town crossing of the crosswalk. The witness did not at any time state the distance that the car was from the plaintiff when the plaintiff first attempted to cross the walk. There was nothing said by this witness as to any increase of speed in the car at any time.
The next witness called by the plaintiff was the plaintiff’s son, a boy twelve years of age. He says that he stood on the northwest corner of Ninety-fifth street; that his mother left him there and started to cross the street upon the sidewalk; that she got as far as the first track; that a car came from up town and she had to wait; there was a truck behind and she had to wait; then the car came from down town up town, and this car knocked her down; that he saw the car when it was at the lower crossing at Ninety-fifth street, and that his mother was then in the middle of the two tracks; that was before she attempted to cross the east tracks; but this boy does not testify as to where the north-bound car that struck his mother was when she walked upon the track and attempted to cross, and there was nothing to show how far off that car then was.
The plaintiff was also called as a witness and testified. She said that she stood between the two tracks and saw a car on the lower crossing coming up; that she looked and thought that she could cross; that she started to cross and got to the last track, the last rail of the up-town track, when the car struck her and threw her down; she remembered that the car was going fast when it struck her and knocked her down, and the car was not going so fast when she stood between the two tracks and saw it at the lower crossing. She *434further testified that it was not dark ; that she was not at all excited when she saw the car coming; that she noticed at the time the rate of speed of the car, saw just how fast it was coming when below the crosswalk at Ninety-fifth street, kept her eyes on this car all the time; and then seeing this car coming on and watching its speed she stepped upon the track, and then knew nothing else until she was in the hospital. In all of this testimony there is not one word to show how far off the car was from the plaintiff when she first placed herself upon the track in front of the car. This gripman was not bound to stop the car as long as the plaintiff stood upon the roadway between, the tracks in a place of safety. He could not assume that she would attempt to cross the track, thus exposing herself to the danger of being struck by the approaching car until she had actually walked upon the track, or in some way indicated an intention to cross in front of the car. The burden of proof is upon the plaintiff, and she must show that after she got upon the track the defendant’s agent neglected to stop the car and thus avoid the injury. There is nothing to show that when the plaintiff got upon this track the car was such a distance from her that it was possible to stop it, or that the gripman neglected to stop it and because of such neglect the injury resulted.
There were several witnesses called by the defendant who seemed to be entirely disinterested. Becherer testified that as the plaintiff got to the west track the ear was going south, and she paused and let it pass and started across'; as she crossed over she found herself ahnost directly in front of the car, and she hesitated and the car struck her and threw her under the wheels ; that the car was about eight or ten feet away from her when she stepped upon the rail; and this witness was the first that got to her after the injury and helped to take her from under the car. The conductor of the car testified that he was in the car at the time collecting fares ; that he heard a scream, and the car gave a sudden stop; was stopped so suddenly that the passengers were thrown forward. Carney, another witness for the defendant, said that he saw the plaintiff run ahead; the car was probably ten or twelve feet from her; she rushed ahead and the car knocked her down; and the witness assisted in taking her from under the car. It appears that this car was then going on a down grade, the fall between Ninety-fifth *435and Ninety-sixth streets being about two feet four and one-half inches in one hundred feet. Now, this is all the testimony that there is in the case to show the distance of the car from the plaintiff when the plaintiff attempted to cross the track, or from which the jury could find that the gripman could have stopped the car before striking the plaintiff, the undisputed evidence being that the plaintiff was but ten or twelve feet in front of the car when she attempted to cross. She testified that the car was then coming towards her very fast. It is quite evident to me that, upon this evidence, there is nothing upon which the jury' could find that the gripman was negligent.
The rule is well settled that a railroad company’s cars have a preference in the streets and that pedestrians must use reasonable care to keep out of their way. (See Fenton v. Second Ave. R. R. Co., 126 N. Y. 625.) . Thus plaintiff stood in a safe place outside of the track. She had already allowed one car to pass her, saw another car approaching, and when it was ten or twelve feet from her she attempted to run across in front of it. The injury was the direct result of her act in running across in front of the car, and not the result of any negligence on the part of the gripman or other agent of the defendant. Whether the speed of the car increased or not after it left the south corner of Ninety-fifth street is immaterial. There is nothing to show that the speed of the car was increased between the time that the plaintiff stepped upon the track and the time she was struck, and nothing to show that, after the plaintiff stepped upon the track, any action of the gripman, however prompt, could have averted the accident. So far as appears, he did everything, he could to prevent the accident. If the plaintiff had simply waited in her place of safety .for a few seconds to allow the car to pass she would not have been injured; and her injury in this case must be said to be, as in the case of Fenton v. Second Ave. R. R. Co. (supra), due to her own carelessness, or it was a pure accident, and in either event the defendant cannot be held responsible for it.
The case of McGuire v. Third Ave. R. R. Co. (9 App. Div. 529), cited by the plaintiff, is not in point. There the court say that the situation was a peculiar one; .that the plaintiff’s intestate’s view of the car which caused the injury was obstructed by a brewery *436wagon which passed between him and the car. That car stopped to allow the brewery wagon to pass. As soon as it passed the grip-man started the car up suddenly. The deceased then found himself in a critical position. He hesitated and jumped back, but too late, and was struck by the rapidly-advancing car. It was held that under these facts there was a question for the jury. Here the plaintiff herself testified that she saw the car approaching before she stepped upon the track; noticed its speed; understood the situation, and with that knowledge started to cross the track in front of the car. Under the circumstances, the accident was the result of her own act, for which the defendant was not, responsible.
The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.
Patterson, J., concurred.
Judgment affirmed, with costs.