The action was brought to recover for personal injuries sustained through the alleged negligence of defendant’s servants by' Bertha Biedérman, a child of thirteen years, who was struck by one of the defendant’s north-bound hoiise- cars while crossing Avenue B in an. easterly direction at the junction of Houston street at about a quarter-past six o’clock' p. m. of the 10tli day of March, .189?. Motion was made when the plaintiff rested and again at the close of the case to dismiss the complaint on the ground that the plaintiff had not sustained the burden imposed by' law of proving freedom from contributory negligence; and to the denial of these motions exception was taken. The issues were submitted to the jury, which returned .-a verdict for the plaintiff, and from the judgment so entered and from an. order denying a motion for a new trial, the defendant -appeals. ■
There was upon the trial, little or no conflicting testimony and the «question presented,'therefore, is whether upon the plaintiff’s showing prima facie case was made out against the defendant. The plaintiff testified that, upon the evening of ■ the accident she was on-her. way home with some bread, accompanied by lier younger brother and sister,, aged eight and ten years respectively, and had reached.the northwest corner of Avenue B and Houston street and intended crossing Avenue B; that she stood on the corner and looked upland down the avenue and did not see any car, but there was a covered wagon in front of her and she waited on the sidewalk for it to pass and then, when it had reached the south side of Houston street, started to cross the avenue; that • the children ran on *293ahead and disappeared, but she continued walking till she was struck; that to protect Jier ears she had a big shawl over her head and shoulders which came to the edge of her face and she did not see or hear the car or horses approaching, and that her father told her the car which struck her was going uptown. The father testified that there was a single track running through the middle of Avenue B, which, from curb to curb, was about thirty-five feet wide. Chai-les Fuss, a peddler, testified that he was standing on the day of the accident with his push cart on the east side of Avenue B about thirty-five feet north of Houston street and saw the plaintiff when she was on the other side of Avenue B with a shawl over her head and carrying something; that it was light at the time and he saw her wait for a wagon to pass by, which wagon turned from Avenue B into Houston street; that two children who had been with the girl ran ahead and then she started to walk over and the car horses came along fast and ran into her; that he heard no signal given. This testimony, besides that given to show the extent of the injuries, constituted the plaintiff’s case.
In- behalf of the defendant, a policeman testified that he was standing on the west side of Avenue B just north of Houston street immediately before the accident and first saw the plaintiff as-she was going across the avenue and when she was about four feet from the west rail and the horses were about six feet from her ; that she continued to walk across and he ran after her to make an effort to stop her; that when she reached the middle of the track, she was knocked down and the car then stopped within five feet. A passenger who was standing with the driver on the front platform of the car when the accident occurred, testified that when he first saw the girl she was about eight or ten feet away from the horses’ heads and about three or four feet from the west rail of the track and she started to cross the track when the horses’ -heads were two or three feet away from her; that “ the driver hollered and turned his brake and put it on with such force that it spréad the horses, and threw me and him up against the dashboard. Then the whiffietree * * * caught her and knocked her down.” The conductor testified that he heard the driver holler and saw the girl between the horses’ heads, and when he got in front the. people were assisting the girl over the whiffietree behind the horses.
*294The version of the accident given by the defendant’s witnesses makes out a clear case of contributory negligence; but disregarding their testimony entirely and considering by itself that -which was presented on behalf of the plaintiff, there was not, in our judgment, sufficient evidence to justify the inference that plaintiff was free, from contributory negligence. It will be recalled that at the place of the' accident there is but one track upon which the cars run in a northerly direction, and that with the exception of' a wagon which the plaintiff' states , she permitted to pass, there was nothing to obstruct her view. Yet at a time of day when it was light enough to see the car and when there was nothing to prevent her from hearing it—except that her ears were inclosed in a shawl — she proceeds from the sidewalk to- the track- without looking to see or taking the slightest notice of a car which was then approaching. . She states that she looked before the wagon had passed and while' she was on the sidewalk, but, without looking again, she started leisurelyto cross the avenue and went to and upon the track under conditions when, had she used either her eyes or her ears, she ivould necessarily have had notice of the advancing- car. That she used neither is apparent ■ from her testimony that she knew nothing about the car before or after leaving the sidewalk until she was struck by the horses.
As urged by the appellant, “ If it was the duty of the driver - of the car to avoid coming in contact with her, it was surely plaintiff’s duty to make a like observation with respect to the car; if it should have appeared that the driver when half way down the block had looked and failed to look again, he would clearly have been- guilty of negligence.” And it is difficult to see, if a parity of reasoning- is to be employed, why, in the manner in which the plaintiff conducted herself in failing to use her eyes or ears after leaving the sidewalk, she was not negligent.
The case, is distinguishable from that of Schwarzbaum v. Third Avenue R. R. Company (ante, p. 161), for the reason that-it therein appeared that it was dark and raining heavily and the accident happened where there were two sets of tracks, and, if the testimony of the plaintiff’s witnesses was taken as true, the plaintiff ,and her husband, just before proceeding to cross, looked and continued to look while crossing the avenue, but their vision was obstructed by one or more cars going south which prevented ’their seeing a fast approach*295ing car coming north, which struck the man before lie could safely reach the easterly side.
The present case cannot be distinguished from that of Weiss v. Metropolitan Street R. Co. (33 App. Div. 221), which is, therefore, controlling. The facts therein, as appears from the statement in the' syllabus, are in some respects similar to those presented here. There a child eight years and four months old, of ordinary intelligence, good eyesight and hearing, accustomed to go on the street unattended, was observed 21 feet from the railway track looking in the direction of an approaching car then over 100 feet away, on a bright •day, with nothing to prevent her view or prevent her seeing the car. It was held that although the girl on account of her age was not required to exercise the same degree of care as an adult, she was required" to exercise care commensurate with her age and intelligence ; and that the failure to exercise such was fatal to her right to recover.
So here, the absence of facts from which the inference could be drawn that while approaching the track the plaintiff exercised the slightest degree of care in looking or listening for an advancing car,
■ though had she done either with an unobstructed view she would have seen or heard it, leaves the record barren of any evidence from which the jury would have a right reasonably to conclude that she was free from contributory negligence.
The judgment accordingly must be reversed and a new trial ■ordered, with costs to the appellant to abide the event.
Rumsey, Patterson and McLaughlin, JJ., concurred; Van Brunt, P. J., concurred in result.
Judgment reversed, new trial ordered, costs to ajipellant to abide event.