The plaintiff attempted to cross Third avenue at the lower crossing of Eighty-fourth' street. When she got to the westerly track she had to stop to allow some trucks to pass. Eollowing these trucks there was a car, and she then waited for the car to pass ; and as she describes the situation : “ After the car passed I started to cross the uptown track; the westerly rail of the uptown track; and I just stepped upon it and saw the car and stepped back immediately. * * * When I stepped back I turned slightly to see if I could retrace my steps, and I saw a truck coming down on the down track, and the wheels of the truck were a considerable distance east of the westerly track, of the easterly rail of the westerly track. The horses were right at me, right near me. * * * The horses were right near me, almost upon me. The car came on toward me. The car struck me then and I lost consciousness.” She further testified that she first saw the car when it was about twenty-five feet away and that she stepped upon the track at that moment; that just as soon as the downtown car had passed she stepped right back of the rear end of the car, and that she then saw the car coming on the uptown track and stepped back and turned toward the left and for the first time saw the truck. This is all the evidence there is from which the jury were justified in finding *216that the defendant was negligent and the plaintiff free from con-tributary negligence. The plaintiff passed immediately behind the car going down, and as she stepped upon the uptown track she saw an uptown car approaching and then she stepped back off the uptown track. ...
The question arises as to what there was here to charge the motorman with negligence. He saw the plaintiff stepping on the track when the car was, twenty-five feet away from her, and then saw her step back again off the track; and there is nothing to show that he was chargeable with knowledge that when she was off the track she was in a situation of -danger. The car apparently passed the plaintiff without striking her; and there is no evidence that she was on the track when the car peached her, or that she was struck at all by the car. She says the car struck her, but does not say what part of the car, and it is quite evident from her own story that she was off the track when the car passed her. There certainly was nothing to charge this motorman with notice that the plaintiff was in a situation of danger so to make it his duty to stop the car; and I fail to find any evidence of defendant’s negligence. When this case was before this court on a former appeal (39 App. Div; 663), it was then held that there was no evidence of negligence, and Mr. Justice Patterson, writing the opinion of the court, said: ■“ It thus appears that when the defendant’s car, coming at a rapid rate, was twenty-five feet from the plaintiff, she was in the act of crossing the track upon which that car was running. It also appears that at that time the truck was some twenty-five feet northward of the plaintiff.. There is nothing to show why the gripman of the car had not every reason to believe that the plaintiff being on the track proceeding eastwardly could cross that track in safety before the car could reach her, or that he had any reason to anticipate that she- would turn and retrace her steps and put herself in the peril of coming in contact with the truck. How far the car traveled while the plaintiff was in the act of- turning and- withdrawing from the easterly track is- not shown,■ but it must have proceeded some distance. Assuming that the grip-man, when the plaintiff retreated from the track, saw the danger to which the plaintiff was exposed, it Was then necessary for the plaintiff to show that he could have- controlled the speed of the car in such a way as to have prevented the accident.”
*217It seems tome that what was said on that appeal is conclusive upon this. There was nothing to justify the jury in assuming that the grip man had such knowledge that this plaintiff was in a situation of danger when she stepped upon the track and at once stepped back as to require him to stop his car ; and there is nothing upon which to predicate his negligence in not stopping the car. Nor do I think that the evidence of a man, who never was a gripman on one of these cars, that in his opinion the car could have been stopped in fifteen or twenty feet, is a sufficient basis to find the defendant negligent in not stopping the car before it reached the plaintiff. Upon the whole case, therefore, I fail to find that- there was any evidence to justify the finding of the jury that the defendant was negligent.
I also think it was error to allow the plaintiff to testify as to evidence she gave on a former trial. The counsel for the defendant on cross-examination asked the plaintiff if she had given certain testimony on the former trial, to which she answered that she did not remember, and there was no evidence obtained on behalf of the defendant as to what the testimony on the former trial had been. Upon redirect examination it was improper for the counsel for the plaintiff to ask his client what she had testified to on the former trial.
The judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., and McLaughlin, J., concurred ; Patterson, J., dissented.