I concur with Mr. Justice Patterson, except so far as there is an intimation that the court properly left to the jury the question of the defendant’s negligence, as I think there is no evidence to sustain a finding of the defendant’s negligence, or that the plaintiff’s intestate was free from contributory negligence.
The plaintiff’s intestate having crossed the tracks of the defendant’s road at the corner of One Hundred and Eighth street and Madison avenue, and being on the east side of Madison avenue near the crosswalk, lost his hat, the wind blowing it off. When his hat blew off one of the defendant’s cars was between One Hundred and Seventh and One Hundred and Eighth streets, going north at a rapid rate of speed. The plaintiff’s intestate ran after his hat, running in front of the approaching car, when he was struck by the car and thrown back to the east side of the street, sustaining injuries which resulted in his death. This accident happened on the evening of the 20th of November, 1898, between seven and nine o’clock, when it was quite dark. One of the witnesses for the plaintiff tes*430tified, in answer to the question, “ Did you see him step onto the track?” “I saw him bend,-that is, make an effort to bend. I just saw him reach the track and about bend, and then he was struck. I didn’t see him grab the hat. He ran toward the track and then he was struck. * * * I don’t know whether he got either foot, on that track before he was hit. The fender struck him. The fender might have struck him before he got onto the track. I didn’t see that. * * * When the boy got up within two feet of that -. track I saw him, and kept my eye on him as he ran across the street over towards the track. I-watched him. When the boy got up-within two feet of the east rail of that car track that car was a short distance away.” Another witness testified that he saw the boy’s hat blown off, the boy start to run after the hat, and immediately after the car ran on him and hit him in the back.
Upon this testimony I do not think that the finding that the defendant was guilty of negligence or the plaintiff’s intestate free from contributory negligence can be sustained. The car was going-on its way uptown, with nothing to indicate danger or that any one was upon the track or intended to cross it. Both witnesses for the plaintiff united in saying that all this happened almost instantly, and that the car struck the plaintiff’s intestate either just before or just as he had placed his foot upon the track. There is nothing to show that the motorman could have anticipated that the plaintiff’s intestate would thus run immediately in front of the car, or that, at any time after the plaintiff’s intestate appeared in such a position the motorman had time to stop the car and avert the accident. There is, therefore, an entire absence of evidence to justify a finding that the defendant was negligent; and upon the whole case it appears that the accident resulted because of the.negligence of the boy’s running immediately in front of the car, being so engrossed in the pursuit of his hat that he omitted to look to see if a car was approaching.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.