Stare deeisis is my reason for dissenting from the opinion of Mr. Justice Hatch.
In Thompson v. B. R. Co. (145 N. Y. 196) a girl fourteen years ■of age, while playing a game of “ I spy ” in the street, was killed by ■a passing car. The court reversed a judgment against the defendant, on the ground that the evidence clearly showed the person injured to have been guilty of contributory negligence. One statement of the learned judge who wrote the opinion is singularly applicable to the present controversy. “ It is said that she may have been deceived in reference to the approaching cat by reason of its speed, but she could not have been deceived unless she saw it. Had she seen it approaching before the other car passed, she would hardly have been justified in attempting to cross the street after the first car had passed without again looking for the approaching car.” (Pp. 200-201.)
In landrigan v. Brooklyn Heights R. R. Co. (23 App. Div. 43) we reversed a judgment entered upon a verdict in favor of the plaintiff, on the sole ground that the evidence showed' that the plaintiff was guilty of contributory negligence. Mr. Justice Willard Bartlett, writing the unanimous opinion of the court, .said-: il The plaintiff alighted and went around the rear of the car toward the further sidewalk of Broadway, in order to reach which it was-necessary for him to pass over the down' track of the railroad line. After he got upon this down track he was struck by the corner of the dashboard of a mail car coming in the direction opposite to that pursued by the car which he had just left, and was knocked over into the gutter. Before lie stepped on the rail,.he says, he looked up to see if any car was coming, and saw no car. Broadway is straight at. that point, and there was nothing -in the way to prevent him from seeing. the .. approaching car. Nevertheless, he swears positively that . he did not see it until after he stepped on the first rail of the down track, when he perceived it about twelve feet away. At that instant a'fireman, on the opposite side of the street, gave a warning cry, whereupon the plaintiff backed off the track, but not quickly enough to avoid injury.” The opinion declares that the evidence tended to establish negligence on the part of the defendant, but the court also held that the plaintiff “ failed to sus*251tain the burden which the law placed upon him of proving affirmatively that the injuries which he sustained were not due to his own imprudent conduct or lack of care. Under the circumstances, as he narrates them, it is impossible to avoid the conclusion that if he had looked up the unobstructed street to the extent and with the vigilance demanded by the exercise of ordinary prudence,-he would •certainly have perceived the car with which he collided a moment later. In such a situation as he occupied it is not only necessary for a traveler to turn his eyes in the direction from which danger may be expected, but he must actively exercise his power of vision and not step .blindly into, peril.”
Mr. Justice Hatch distinguishes, that case from the one at bar because, as he says, the Landrigan “ accident happened 'in broad ■daylight, and it was evident that the plaintiff, in the exercise of ordinary care, ought to have discovered and avoided the approaching car. In the present case the accident happened at night, and the distance from which the car might have been observed was not entirely clear, it being insisted by the plaintiff that the obstruction of the car from which he had alighted, and the surrounding darkness after he had passed it, Tendered the proximity of the approaching car quite uncertain.”
It is true that the accident in the present case happened at night, but the approaching car could easily have been seen by the plaintiff when it was several hundred feet distant. The motor man of the -car from which the plaintiff alighted was called as" a witness by the plaintiff, and testified that he saw the approaching car when it- was .at Twelfth avenue, which, as shown by the diagram in evidence, is about 1,000 feet from the trolley pole station. I think we may assume that the approaching car was lighted, as nothing to the contrary appears, and it was for the plaintiff to prove the absence of the usual lights if he relied upon such fact to account for his failure to see the car. In addition to this, the mo.torman of the. car testified that in his report he stated that “all electrical appliances worked in a first-class and satisfactory manner,” and on the trial he testified that this part of his report was true. . The plaintiff says that when he rose from his seat he looked 'and did not see the car •or any lights. The testimony of the plaintiff at this point becomes very important: “ Q. The car was, you say, still in motion when *252you stepped off? A. It might have been a little in motion, but it was virtually stopped, sir. Q. From which side, of the.car did you step off ? A. Stepped off on -the left side, sir, so I could get off on the sidewalk. Q. After you stepped off, Mr. Wise, what did you do? A. Well, I stood there awhile, and, after I stood awhile, I turned and I says, ‘ I guess I had better look around,’ 'and-I looked ahead and 1 seen no car, and I went about my business, and I thought to get to the other side, and that is all I recollect, sir. Q. In order to get to your home, did you have to cross the intervening track? A. Yes, sir; I had to cross it. Q! How close to the rear of that car that you got off did you cross? A. Well, I must have been within about six feet of it; I walked along a piece till I started to cross. Q. Now, tell us whether or not you had stepped upon the other track when you were struck ? A. Well, that is what I can’t say, sir; I don’t know, sir; I don’t recollect it. Q. What part of your body was struck ? A.' I couldn’t tell you, sir.”
I cannot understand why the plaintiff did not see the approaching car before he alighted, as the motorman did, for he testified that he looked in its direction. After he reached the ground his eyes were three or four feet lower than those of the motorman as he stood on the car, but even then the approaching car could have been seen at a great distance. The diagram in evidence shows that on Bay Ridge avenue, from the scene of the accident to Eleventh avenue, there is an up grade of. fourteen inches in each one hundred feet, and that the crest of the hill is at the intersection of that avenue with Bay Ridge avenue, from which the grade of the latter avenue begins to descend at the rate of nine inches, in each one hundred feet. The place of the accident was on the up grade, more than three hundred feet from the crest of the hill. The eyes of the plaintiff as he stood there between the tracks must have been at least five feet from the ground,, that is, taking- into account the grade, one foot higher than the crest of the hill, so that he could look over' it and down the hill beyond Eleventh avenue. The headlight of a trolley car, by common observation, is at least three feet above the ground. Without any very. nice mathematical calculation, but with the aid of the diagram above mentioned, it is easy to see that a straight line drawn from this position of the plaintiff’s eyes, five feet'above the ground, and intersecting the crest *253of the hill, would, if continued, meet a point three feet above the surface of the down grade on Bay Ridge avenue (i. e., the headlight of an approaching car), more than one thousand feet beyond the plaintiff as he stood between the tracks. This does not take into consideration any of the lights of the approaching car with the exception of the headlight, but it is apparent that the upper lights could have been seen at a still greater. distance. The evidence shows that the car was approaching at a rapid rate, but there must have been a considerable period of time during which the plaintiff, as he stood between the tracks, could have seen this car, if, in the above-quoted language of Mr. Justice Willard Bartlett, “ he had looked up the unobstructed street to the extent and with the vigilance demanded by the exercise of ordinary prudence.” If the obstruction referred to by Mr. Justice Hatch was the car from which the plaintiff alighted, he should, have taken particular care before passing from behind it and over on to the other track. It is stated by Mr. Beach, in his treatise on Contributory Negligence, at section 183, that “ Where the view is obstructed, or where for any other reason, it is difficult for the traveler to assure himself that no train is approaching, he is required to be particularly careful.” But even this excuse seems to be taken from him by his subsequent testimony. He said that he looked while he was behind the car and then walked into the space between the two tracks. Blis testimony at this point of the cross-examination was as follows: “ Q. And did you look while you were'in between the two tracks ? A. Of course I did, sir. Q. And did you look up the track again? A. No, I walked a little further and I crossed the street across the track. Q. The question I asked you was did you look after you got between the two tracks? A: I did, sir.- Q. And what did you see then ? A. I seen nothing. Q. You were then how close to the track on which the car was that struck you ? A. About three or four feet. Q. And then you walked onto the track ? A. To cross it; yes,, sir.” „ )
The evidence shows that when the plaintiff was struck the rear ends of the passing cars were only six or eight feet apart and that the plaintiff was struck by the side of the car or the side of the fender before he had actually gotten on the track which he was about to cross. It is incredible that if lie had looked he could-not have *254seen the approaching car, and the familiar rule has especial application here. Either he did not look and so was negligent, or, if lie-looked and did not see the car when it was where he could not fail to see it if he “ actively exercised ” his ¡lower of vision, he was-equally negligent. From this dilemma, I can see no escape for him.
In Hickman v. Nassau Electric R. R. Co. (36 App. Div. 376), the court, speaking through Mr. Justice Woodward, said (pp. 378, 379): “ It is not enough that the plaintiff, should merely look in both directions; she must look for the purpose of seeing if there is danger ; and if her rate of progress in passing over the danger point is so slow that a car in traveling at a reasonable rate of speed may be reasonably expected to have come within view, and in such a position as to cause danger, she is not excused from the duty of using her eyes because she may, at some previous1' time, have discharged this duty.”
There is another view of this case which has impressed me, and this arises from the remarks of the learned justice before whom the case was tried, which appear in the course of the examination of Dempsey, the first witness called by the plaintiff, and motorman of the car which struck the plaintiff! He testified that he did not see the plaintiff until his car struck him, and that he was struck with the side of the fender or dashboard; that the car was going so fast that it went 100 feet after the accident; that the front of his car was about even with the rear of the other car at the time of the accident. Dempsey had made two sworn written reports of the accident to the defendant, one on the night of the accident and another two days after in which he said that his car was going at less than its “ regular gait; ” that he brought it to a stand within five feet from the place of the accident; that at Twelfth avenue, which, as above stated, is 700 feet from Eleventh avenue, he saw the other car and-, as he was then on a down grade, shut off the power and half-set the brake; and that “ just as my forward dashboard"was even with the car 4,202 rear dashboard and without seeing him coming, a man fell against my fender; the inside; that is, he fell against the inside of the fender nearest the car 4,202.” He also testified at the trial that these statements contained in his sworn reports, so far as they related to the speed, brake and the stumble of the plaintiff, were false and that he made them at the request of defendant’s1, claim *255agent in order to save himself from being discharged, but that it-was true that the plaintiff fell against the fender and that he-staggered from behind the other car and fell against the side bar of the fender. After the discharge of the witness from the defendant’s-employ, about six months after the accident, he volunteered to tell the plaintiff and his counsel that his statements were false, and he so-testified at the trial. But he also testified that at the top of the grade, at Eleventh avenue, all the way down to the place of -the accident, he was ringing his gong. It was not singular that the spectacle of a witness of this character impressed the learned trial judge with the unreliability and falsity of his testimony, as shown by the record.
"While it is true that the credibility of a witness is matter for the-jury and not for the court, occasions may sometimes arise where a-witness is so utterly and manifestly unworthy of belief as to influence in some degree the action of the trial court. Whether this is such a case is not important, for the appellate court may properly consider all the evidence and give to each witness and all the facts their proper weight and decide whether there is any evidence to support a verdict. If we reject the testimony of Dempsey, as wholly unreliable, the case is stripped of much testimony produced to sustain the plaintiff’s theories. Aside from the plaintiff’s testimony already cited, there remains’ only evidence to show that the approaching car„was proceeding rapidly and that the gong was not sounding. It is true that a jury might have been justified in finding that the plaintiff looked, but in the light of the principle already referred to there, was no evidence to overcome the presumption that if he looked he did not see the approaching car, for he testifies that he did not see it, although it must have been in plain sight when he came out from behind his own car.
I do not consider this inconsistent with luhrs v. Brooklyn Heights R. R. Co. (13 App. Div. 126), in which this court held that “where one or two competent witnesses testify to facts not incredible, which if believed by the jury would entitle the party to a verdict, the party cannot be , deprived of his right to go to the jury because the witnesses who contradict his evidence are more numerous. The only remedy to the party aggrieved is to move to set aside the verdict.”' Here there was evidence which clearly showed that the injury to *256the plaintiff was occasioned by his own negligence, irrespective of the question whether the defendant’s car was proceeding at unusual speed and without sounding the gong, which alone would not be sufficient to justify a verdict against the defendant.
I think the judgment should be affirmed.
Judgment reversed and new trial granted, costs to abide the event.