The plaintiff’s intestate, while crossing to the westerly side of Third avenue, about seventy feet south of Seventy-second street, at *28a few minutes after nine o’clock on the evening of July 11, 1900, was struck by the defendant’s south-bound electric car and thrown-from the track and killed.
The deceased was a man about fifty years of age. The evidence is that he was. walking, and continued to walk until he was struck, at a natural and ordinary gait, and that he started from the sidewalk, which is thirty-three feet from the track where the. accident occurred, when the electric car Was at the south Crosswalk of Seventy-second street — seventy feet north of the place of the collision. The avenue was well lighted from the electric lights and store windows, and the plaintiff’s witnesses clearly saw the deceased at a distance of one hundred feet. There Were no other cars or vehicles about, and the electric car was brilliantly illuminated. The car did not stop at Seventy-second street, and there is evidence that it did not lessen its speed, until the accident occurred, and that it then ran some eighty or ninety feet further on. When struck the deceased had passed the middle of the track, and was about to step-over the westerly rail when he was hurled through the air and landed some fifteen feet away from the car in a southwesterly direction, sustaining a fractured skull, from which injury he soon died.
One of the plaintiff’s witnesses, Strauss, apparently a hostile witness, was sitting at the- time of the accident in front of a store on the easterly .side of the avenue, about one hundred feet away, and testified that as the deceased crossed the track his face appeared to be about west—about half-way position — not looking up the street, but looking towards the northwest slightly. Formerly he had made the statement: “ He was turned a little up the street; he seemed to be looking in that direction,” and upon -being further interrogated, said the deceased was looking “ slightly up the street.” This witness also testified (and no other witness testified on the subject) that the car was about fifteen or twenty feet away from plaintiff’s intes- ' tate when he stepped on the easterly rail of the south-bound track — and was five feet away when he stepped on the westerly rail. He also testified : “ The motorrnan reversed his brake immediately after the collision * * * the car was coming very fast.” A policeman, who had seen the accident and had testified among other things-that the car . could have been seen and heard a considerable distance*, was asked: “ Did you hear any ringing of a bell by the motorrnan ? ” *29and objection ■ was made to the question, which objection was sustained and exception taken. Other questions as to whether any warning was given by the motorman and whether the witness had called out to the motorman to stop and he did stop after such calling, were ruled out, exceptions being duly taken.' This witness and others testified that the deceased was facing directly west.
At the close of the plaintiff’s evidence the learned trial judge dismissed the complaint, and the question on this appeal is as to whether such ruling was right.
The rule has been frequently stated that in reviewing a judgment upon a nonsuit the plaintiff is entitled to the benefit of the most favorable inference that can be drawn from the evidence admitted or which should have been admitted. If there are two inferences, one favorable and the other unfavorable to the plaintiff’s cause of action, in determining whether a dismissal of the complaint is right, we must take that inference which is favorable to plaintiff.
Another rule supported by McDonald v. Metropolitan St. Ry. Co. (167 N. Y. 66) is thus summarized in the headnote of that case: “ The court cannot in any case where the right of trial by jury exists ■ and the evidence presents an actual issue of fact, properly direct a verdict; if in such a case it is dissatisfied with the verdict because against the weight or preponderance of evidence, it may be set aside, but a new trial must be granted before another jury, and the direction of a verdict under such circumstances is reversible error.”
It follows, we think, from these rules, that where the complaint is dismissed at the close of the plaintiff’s case, then if from the evidence two inferences can be drawn, one supporting and the other destroying the alleged cause of action, it is for the jury to say which of the two shall be drawn.
Taking the facts most favorable to the plaintiff, it here appears that the deceased on the night in question was desirous of crossing between Seventy-second and Seventy-first streets from the east to the west side of Third avenue, and when he reached the easterly tracks upon which the north-bound- cars were propelled, the car which subsequently struck him was a considerable distance away on the other track bound in a southerly direction; and that having reached the south-bound track, he proceeded at an ordinary walk to *30cross, the car at that time, when he reached the easterly rail of the-south-bound track, being from fifteen to twenty feet away, but coming at a speed so rapid — as testified by one of the witnesses—that-it took only three seconds to run eighty or ninety feet after the collision, which would be at the rate of over twenty miles an hour. The deceased.had almost cleared the track, having reached the, westerly rail, when he was struck. One witness testified that when he arrived at this point the car was five feet away, but before he. could leave the rail, which would have required no more than a second (evidently but a step or two), the car hit him. From this it would appear that the car went a distance of at least five feet before-the man could take the step necessary to clear the track.
An effort was made, but under the rulings, of the court, unsuc-. cessfully, to show that no gong was sounded nor any signal given, by the motorman, by shouting or otherwise, to warn the deceased of his danger, and, such evidence -being competent* we must regard-the case as though it were admitted. Further, it appears that the deceased was thrown violently a distance of fifteen feet to one side and ahead of the ear, and that no effort whatever was made by the motorman to stop the car until after the collision.
We have, therefore, an accident which occurred on an avenue which was sufficiently lighted and in no way obstructed by vehicles so as in any manner to. obscure the vision of the motorman or of the deceased. Either of them by looking could have ascertained the position of the other, and it remains to determine whether upon the evidence adduced, drawing the inferences most favorable to the plaintiff, the learned trial judge was justified in holding as matter of law either that the motorman was not guilty of negligence or. that the plaintiff’s intestate was guilty of contributory negligence.
Upon the former proposition, it appears that while the man was plainly in sight endeavoring to cross the south-bound track, the car, without a signal or warning of -any kind, or any attempt to stop or retard it, came at a high rate of speed and struck him. From this' evidence two inferences can be drawn. One is that the motorman-assumed that deceased would or could cross the tracks in safety without it being necessary to slacken the. speed of the car or to give any warning, which assumption, although it might constitute an error of judgment on the part of the motorman, would not *31necessarily show that he was negligent. The other inference is that the failure to slacken the speed or give any warning was a failure to observe that degree of care which the motorman should have observed with respect to a person in the position of danger that the man then was, while crossing the tracks; and, in this connection, it is evident that if a warning had been given so as to call the attention of the plaintiff’s intestate to the necessity of hurrying, or if the speed of the car were slackened in the slightest degree, he could have crossed in safety. Upon the question of the defendant’s negligence, therefore, facts were presented from which the jury might have inferred either culpable negligence or a mere error of judgment.
Upon the subject of contributory negligence, the rule is thus stated in Kettle v. Turl (162 N. Y. 255): “ The question of contributory negligence is generally one of fact to be determined by the jury, and it is not within the province of the court. It is only where it clearly appears from the circumstances, or is proved by uncontroverted evidence that the party injured has, by his own acts or neglect contributed to the injury, that the court can determine that question. The cases are exceptional where it can be held that contributory negligence was so conclusively established that nothing was left either of inference or of fact to be determined by a jury.”
What has been said with respect to the conduct of the motorman is equally applicable to that of the plaintiff’s intestate. He undertook to cross the tracks at a place where, the car being in plain sight, he saw, or should have seen, it; and if, owing to its distance from him, he miscalculated its speed as it came towards him, and thus did not accelerate his steps, this might be regarded by the jury as an error of judgment on his part. • We do not think it can, as matter of law, be held to have been negligent.
That he could have passed over unharmed, and that he was not guilty of contributory negligence as matter of law in attempting to cross at all, may be inferred from the fact that, although walking at an ordinary gait, he had almost cleared the westerly rail in safety, and would have done so had it not been for the great speed at which the car approached him. “ Assuming that the plaintiff saw the car approaching very fast, still there was. nothing to indicate to him that it was not under control of the driver, and he had a right to *32believe that the latter would exercise proper care. The plaintiff supposed he would clear the car, and although subsequent events proved that he erred in this conclusion a mere error of judgment was not necessarily negligence, when the proof shows that .had the car been properly managed, as the plaintiff had a right to assume it would be, he would have been enabled 'to cross in safety.” . (Buhrens v. Dry Dock, E. B. & B. R. R. Co., 53 Hun, 571; cited as authority in Johnson v. Rochester Railway Co., 61 App. Div. 12, 17.)
And this court in Copeland v. Metropolitan St. Ry. Co. (67 App. Div. 483.). said : “ We do not understand the rule to be with respect to the rapid passage of electric cars, that a person seeing a car in the distance is obliged to wait until it has passed and cars are. no longer in sight., * if ■ * On the contrary, we have many, times held that pedestrians are entitled to a reasonable use of the streets and street crossings, and, when exercising such rights, they are justified in assuming that those managing the cars will respect them.”
It may properly be. urged that if we assume that the deceased, seeing the car, concluded he could under the circumstances get over in safety and thus was guilty merely of an error of judgment and not of negligence, the application of the same rule to the motorman would absolve him from negligence, leaving him responsible only for an error of judgment. As matter of argument this is good, although it may be observed in passing that the motorman should be more familiar with the actual speed of the car than is a pedesr trian. The court, however, cannot, as matter of law, determine whéther either or both are guilty merely of errors of judgment and not of negligence without usurping the functions of the jury, it being, as already said, where there are two inferences that may be drawn from the facts for the jury to say which of the two should be drawn. (Weil v. Dry Dock, E. B. & B. R. R. Co., 119 N. Y. 147.)
We think the dismissal of the complaint was error for which the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Ingraham' and Hatch, JJ., concurred; Tan Brunt, P. J., and McLaughlin, J., dissented.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.