(dissenting):
This action was brought to recover damages sustained by the plaintiff as administrator of the estate of Charles Ruppert, whose ■death, it is alleged, was caused by the negligence of the defendant. The plaintiff had a verdict, and from the judgment entered thereon ■and from an order denying a motion for a new trial the defendant lias appealed.
On the trial it appeared that the deceased, on the 23d of Febru■ary, 1897, between three and four o’clock in the afternoon, was driving a truck drawn by two horses northerly on the east side of Sixth •avenue in the city of New York, and when he had reached a point between thirty and forty feet south of the southerly line of Seventeenth street he attempted to drive diagonally across the avenue, •and in so doing the truck collided with a car going south on the ■defendant’s tracks, and he sustained injuries from which he died a few hours later. When the intestate started to cross the avenue the truck was about twenty feet east of the defendant’s tracks, and the ear moving southerly at the rate of eight or ten miles an hour, was then at the northerly side of Seventeenth street. Seventeenth street is sixty feet in width. The collision occurred near the center of Sixth avenue, and as nearly as can be ascertained from the record, about twenty feet south of the southerly curb line of Seventeenth street. It did not appear that the intestate saw the ear before the collision occurred, or that he looked or took any precautions whatever to ascertain if á car was approaching before he started to cross the avenue. In the absence of such proof, either direct or inferential, the plaintiff failed to establish a cause of action, and the defendant’s motion to dismiss the complaint should have been granted.
*316It was necessary for the plaintiff in order to recover to prove, not only the .negligence of the defendant, but that his intestate was-free from negligence. (Whalen v. Citizens’ Gas Light Co., 151 N. Y. 70; Weston v. City of Troy, 139 id. 281; Borden v. D., L. & W. R. R. Co., 131 id. 671; Weiss v. Metropolitan Street Ry. Co., 33 App. Div. 221; Johnson v. Brooklyn Heights R. R. Co., 34 id. 271.) The collision occurred, not at a street crossing, but- . between streets, where the defendant had a paramount right to the= use of that portion of the roadway upon which its tracks were laid. That the defendant had such right is so well established that it is-unnecessary to consider that question. (Adolph v. C. P., N. & E. R. R. R. Co., 76 N. Y. 530; Fenton v. Second Ave. R. R. Co., 126 id. 625; Rosenblatt v. Brooklyn Heights R. R. Co., 26 App. Div. 600.) This right it was necessary for the decedent to recognize when he started to cross the avenue, and in view of it, to exercise such care-for his own protection as a reasonably prudent man would, have-observed under similar circumstances. He could not approach a. •point in the street where the defendant’s right of way was superior to his without exercising more care and caution than would bé necessary'for him to exercise if their rights were equal. It is .riot claimed that the speed of the car was excessive, or that it was increased after the intestate started to cross, and he had no right to suppose -that-the car would be delayed in its progress in order to enable him to-pass over the tracks in safety. It was a clear day, and there was-nothing to prevent the deceased, if he had looked, from seeing the-approaching car, and whether or not he looked is entirely a matter of speculation. If he did not look, then he did not exercise the care which the law required. A reasonably ’ prudent man does not passover the tracks of a street railroad between streets without first- # observing whether a car is approaching which may cause him injury. If the intestate looked and saw the car approaching, then he either carelessly and heedlessly drove in front of it or else supposed that he had time to cross before the car would reach "that point. If the former, the plaintiff was clearly not entitled to recover, and if the latter," the driver of the liorse car had just as much right to suppose that the truck would pass in safety as the intestate had. In other words, the facts which it is claimed establish the negligence of the driver of the car also established the negligence of the deceased. *317In this respect the case is precisely like that of Weiss v. Metropolitan Street R. Co. (33 App. Div. 221). There this court held, where a child eight years and four months old was struck and killed by a street car, that “ if it be conceded that the defendant was negligent in not controlling the car in such a way as to prevent the accident, the facts which establish its negligence also establish the negligence of the deceased. No other conclusion can be reached. The child and car were both approaching the same point on the track. The car had 100 feet to go and the child 21. The child traveled the 21 feet in the same space of time that the car traveled the 100 feet. She had the same opportunity of observing the movements of the car as the grip-man did her movements. If the gripman, therefore, was negligent in not seeing her and stopping the car, and thus avoiding the accident, she was equally negligent in not seeing the car or in stepping in front of it. The defendant was under no more obligation to exercise care to prevent injury to her than she was to exercise care to prevent injury to herself.”
But it is suggested, not by counsel, that the intestate had a right to rely upon the car being delayed in its progress to enable him to cross, if such delay were necessary, and for that reason contributory negligence cannot be predicated upon his mistake of judgment. This is the rule applicable to street crossings, but it is not true as applied to the place where the accident in question occurred. The ■deceased had no right to rely upon zthe car being delayed at that point to enable him to cross, because the defendant had there the paramount right of way.
A fair consideration of all the evidence introduced upon the trial, it seems to me, requires us to hold that the plaintiff failed to establish the intestate’s freedom from contributory negligence, and for that reason the judgment should be reversed.
I am also of the opinion that the judgment should be reversed because the learned trial' justice refused to charge the defendant’s 18th and 20th requests. They were as follows :
“Eighteenth. It appearing from evidence introduced on behalf of the plaintiff, and'by other evidence in the case, that the accident by which the decedent, was injured did not happen at the intersection of Sixth avenue and 17th street, but at a considerable distance below the crossing,- the defendant had a paramount right to that part of *318the street on which the track was laid on which its car was running for the unobstructed progress of its car at a lawful rate of speed and the decedent, Oharles Ruppert, was bound in a reasonable man ncr to respect the paramount right of the defendant to the use of it~ railway track, and if the jury find from the evidence in this •cas€ that Rüppert did not respect such paramount right of defendant tc the use of its track, but was endeavoring to cut off the car and thm obstruct its progress at the time of the accident, auci was injured while engaged in violating the paramount right of the .defendant~ then the plaintiff cannot recover and the defendant is entitled to C verdict."
"Twemt'~eth. A street car has `the right of way' except at the intersecti~n of the cross streets, and ` iersoiis lawfrilly driving on the same tracks must not reck~ess1y, care1essJ~y or wijlfully obstruct the passage of the cars.'"
There was no conflict in the evidence a~ to the piace where the collision occurred. It was not at, but several feet south of, the Seventeenth street crossing. Therefore, it must be conceded that. the defendant had a. paramount right to the use of the sti~eet at that point (Adolph v. C. P., N. & E. R. R. R. Co., 76 N. Y. 530; Fenton v. Second Ave. R. R. Co., 126 id. 625; Rosenblatt v. Brooklyn Heights R. R. Co., 26 App. Div. 600), and it was entitled to have the jury so instructed. But it is said that ti'e requests were in fact cov- ered by the main charge. With this I cannot agree. What the court did say in his main charge on the subject was that "the plaintiff'l intestate was hound to use ordinary care in crossing that trdck. He was as much bound to look out for danger as the c~tr driver was. The car driver was also bound to use ordinary care iii approaching the crossing. He was bound to~ look out if* he did not heedlessly or carelessly run over a person on the track. His duties were equal as far as that particular point was concerned. Each of them, tile driver of the truck and the driver of the car, were bound to use care as far as each of them were concerned. ~. * * There was a little evidence as to the, locality where the truck was at the time it was struck by the car. Sonic of the witnesses put it at or near, oi on the crossing, and others a few feet below. Neither party had *319the absolute right of way there. Each party was bound to look out for the other. * * * It was the duty of the driver of the car, if he saw the plaintiff on that track, to use ordinary care to prevent the car from running into the truck. That is what I mean by saying that neither one had the absolute right of way. If the car was 100 feet off when the truck was on the car track, or 50 feet away, or any distance, * * * then it was the duty of the driver of the car not to run into the truck nor to injure the plaintiff’s intestate, and if he failed to exercise such a degree of care, then he was negligent and the company was negligent. People driving on a car track have no right to recklessly, carelessly or willfully obstruct the of cars.”
■ The instructions thus given fall far short of what the defendant requested. The defendant desired to have the jury told plainly and explicitly that at the place where the collision occurred the defendant had a paramount right to the use of that portion of the street,, and the jury should have been so instructed. It is true that the court did charge that “ people driving on a car track have no right to recklessly, carelessly or willfully obstruct the ¡massage of cars.” But this only partially covered the 20th request. Exceptions were duly taken to the refusals to charge these requests, and I think the exceptions well taken.
Upon both grounds, therefore, first, because the plaintiff failed to-prove the intestate’s freedom from contributory negligence, and, second, because the trial court erred in refusing to charge as the defendant requested, 1 think the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., concurred.
Judgment and order affirmed, with costs.
Sic.