The principles of law relating to negligence have been frequently formulated and are well settled, but our difficulty arises in their *54application to the facts of a given case. In Hart v. Hudson River Bridge Co. (84 N. Y. 62), which in effect reversed the rule laid down in the same case in 80 New York, 622, the court say: “ The question presented by the charge is, whether the burden was upon the plaintiff to establish that there was no contributory negligence. In Hale v. Smith (78 N. Y. 483) it is held that, in cases where contributory negligence may be claimed, - it is incumbent upon the plaintiff to satisfy the jury by a preponderance of proof; and it is said by Raeallo, J., 'That the absence of contributory negligence is part of the plaintiff’s case, and the burden of satisfying the jury updn that point rests upon him.’ This doctrine is also upheld in other cases. (See Warner v. N. Y. C. R. R. Co., 44 N. Y. 471; Reynolds v. N. Y. C. & H. River R. R. Co., 58 id. 248; Cordell v. N. Y. C. & H. River R. R. Co., 75 id. 330.) Within this rule, we do not discover any valid ground of exception to the charge of' the judge. As the evidence stood, there was no proof either way, and it was by no means clear, in the absence of evidence, that the deceased was not chargeable with contributory negligence. It was not sufficient that the evidence, in this respect, was equally balanced, and it was essential that at least a prima facie case should be established.” And in Weston v. City of Troy (139 N. Y. 281) the Court of Appeals, speaking through Andrews, Ch. J., said: “It is a fundamental principle in the law of this State that, in an action for a personal injury based on negligence of the defendant, the absence of negligence on the part of the plaintiff contributing to the injury must be affirmatively shown by the plaintiff, either by' direct proof or by circumstances, and that no presumption, arises, from the mere happening of an injury and proof of negligence on the part of the defendant, that the plaintiff was free from blame.”
We all agree that there was proof given by the plaintiff which made it proper to submit the question of the defendant’s negligence to the jury, because it appeared that the. gripman in the management of his car, instead of performing his duty by observing objects ahead of him upon the track, had his attention diverted by looking at some women who were on the sidewalk. As said in Ellick v. Metropolitan Street Railway Co. (15 App. Div. 557) : “ The obligation which rested upon the defendant was to so manage the car as to have it under control at the time when it approached and crossed *55the street crossings. At this point it was to be expected that pedestrians would be encountered, in consequence of which it was incumbent upon the operator of the car to maintain a sharp- outlook for them, to have the car under control and to so manage the same as not to endanger the life or limb of persons making use of such crossing.”
While, therefore, the plaintiff sustained the burden resting upon her on this branch of the case, with reference to fhe defendant’s negligence, we have the serious question presented, whether she sustained the further burden • of showing that the deceased was free from negligence on his own • part contributing to the injuries. It has been, held that the burden of the question of contributory negligence is successfully borne if the facts and circumstances, coupled with the occurrence of the accident, are consistent with the exercise of some care on his part, such as might reasonably be expected of him under the circumstances. (Tolman v. Syracuse R. R. Co., 98 N. Y. 203.) And again: “ Passengers must cross in front of moving cars, and they must judge in any given case whether it is safe to attempt it, and contributory negligence cannot be predicated of the mere- fact of an attempt to cross in front of a moving car. Otherwise, one could never cross the track of a street railroad where cars ran at a rapid rate of speed and close together.” (Doller v. Union Ry. Co., 7 App. Div. 283, 287.) This statement of the law, however, is to be regarded as supplemented by what was said in Cowan v. Third Ave. R. R. Co. (16 N. Y. St. Repr. 916) : “ The necessity "upon the part of a passenger in crossing a railway in the city of New York to look to ascertain whether there are vehicles coming which may endanger the crossing is too well settled to need authority. It is the duty of every such passenger to make a reasonably vigilant use of their eyes and ears .to ascertain whether in crossing a street any danger will be incurred.”
Applying these principles, if there were any evidence in the case from which it could be inferred that the deceased before entering upon the easterly track had used his eyes or ears to ascertain the position of approaching cars, and after doing so had pursued a course that any reasonably prudent man might have followed in the belief that he could cross in safety, then, though he might have been in error as to his conclusion, and, instead "of crossing in safety, might have been *56injured, it would properly be a question for the jury as to whether he was or was not guilty of negligence. Or, if in the exercise of reasonable prudence he had placed himself in a position of danger, and when there was called upon to act in an emergency, the fact that he did not select the safest course and was injured, would' not as matter of law render him guilty of contributory negligence. If, however, one proceeds to cross, and without observing any care and in wanton disregard of consequences is placed, as a result, in a position of danger, it can hardly be urged that his own contributory negligence did not play a part in inflicting the injuries which followed.
In other words, the conduct of the deceased after he had placed himself in a position of danger, even though the course he then adopted was not the most prudent, would not constitute negligence per se. But the question still remains whether his getting into the place of danger was the .result of his own contributory negligence. As has been said, the burden was upon the plaintiff of showing that such was not the case by direct proof, or by other facts and circumstances from which the .jury could infer it. In other words, the jury are not to be left to guess or speculate as to the conduct of the person injured, but the burden placed upon the plaintiff requires that some evidence should be produced from which the inference can be drawn that the person injured “ exercised some degree of caution ” (Dobert v. Troy City R. R. Co., 91 Hun, 28) or some care on his part such as might reasonably be expected of him under the circumstances. (Tolman v. Syracuse R, R. Co., supra.) It will be seen, therefore, that although the extent to which the plaintiff must show care and caution is slight, there must, unless the rule is to be entirely abrogated, be some evidence ; and it would hardly be claimed that this was supported by a showing that one approached and crossed the tracks of a city railroad, the' motive power of which was electricity or cable, without making any attempt to look or listen for the approach of a car. The liability must be predicated upon the conduct of the parties prior to the creation of the dangerous situation. Eor if it is with their subsequent conduct that we are concerned, then, while there is sufficient to relieve the deceased from the charge of contributory negligence, it also appears that the defendant was then free from negligence, because the ■ uncontradicted, evidence is that the gripman rang his gong and applied the brake and did all *57that was possible at that time to stop the car. Leaving out, therefore, the defendant’s evidence, and taking the most favorable testimony which was presented on behalf of the plaintiff, it appears that the decedent, while proceeding across the avenue from east to west, not only failed to look or listen for the approach of a car, or to look to the north or south of him at any time during his progress across the street, but, on the contrary, he was looking on the ground at his feet, apparently absorbed in thought and utterly inattentive to the approach of cars on the defendant’s tracks. It is true that after having got as far as the west rail of the track, and when the car was within five feet of him, as the result of a car going down town, or, perhaps, owing to the ringing of the gong on the uptown car, he was roused from his apparent lethargy to a sense of danger, and then, in his hesitation to act, due to the emergency that then presented itself, he was unable to extricate himself and was injured. If it had been shown that he had at any time looked, either before leaving the sidewalk or while in the act of crossing,- so as to give rise to an inference that he was looking out for or was aware of approaching cars, and that in attempting to cross he was only chargeable with an error of judgment, an entirely different question would be presented. Here, however, there is a complete absence of any evidence from which it could be inferred that he looked for or saw or knew of the approaching car, or that he did aught hut start from the sidewalk and, at a leisurely pace, with his head down, proceed to cross the tracks without changing his. gait, and, as' the witnesses describe it, apparently lost in thought, until he had reached a place on the track which was one of danger, and at which he received his-injuries.
Pedestrians have the right to cross over, streets and avenues, and it is obligatory upon railroad companies in using the streets not to interfere with such right. This duty of looking out for passersby is greater when cars are approaching a crossing, because at those points people in fact are more likely to be met with, and it is incumbent upon those in charge .of the cars to have them under such control and to run them at such a rate of speed as to enable those who are crossing prudently to do so with complete safety. We are not Inclined to relax the rule as to the degree of .care required of those' *58managing street cars as now propelled more rapidly by new methods, and which in our. crowded streets and at our crossings are a menace- and a danger to passersby. But while the responsibility and vigilance exacted of those managing the cars is increased, we are powerless, without disturbing a long line of well-settled authorities, ta absolve passersby. from observing some slight care and caution so as to avoid being injured. .
In the case at bar, considering the negligence of the defendant, which was abundantly proven, we should have hesitated to interfere with the verdict if, upon any view, there had been any evidence from which the jury could have been justified in inferring that the decedent did anything, either in the .way of increasing his speed or using'his eyes and ears, thus manifesting that he was on the lookout ■ for or conscious of an approaching car, or that while crossing the. tracks he did aught to avoid creating the situation from which his injuries flowed. The absence of such evidence, we think, is fatal to the judgment, and it should, therefore, be reversed and a new-trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., and McLaughlin, J., concurred; Ingraham and Patterson, JJ., dissented.