I am unable to concur in the views expressed by Mr. Justice McLaughlin in his opinion in this case. The evidence upon the part of the plaintiff, as gathered from the record, tends to establish that the plaintiff was engaged in crossing Third avenue at its intersection with One Hundred and Sixty-third street when he received the injuries of which complaint is made ; that before he attempted to cross he noticed a south-bound car and stopped to let that car pass by him. After it had passed he continued on his way across. At the time when he paused for the south-bound car, he noticed a car coming upon the other track at a distance of about one hundred feet away. When he reached that track, he discovered that the car was coming faster than he had calculated, and that it was unsafe for him to attempt to cross in front of it. He was then in the space between the tracks, or was just about leaving the south-bound track. In this situation, he either remained with one foot on the rail of the south-bound track, or stepped back over the first rail of that track, and while in this position he was struck by another south-bound car. The latter car, as the testimony tends to establish, was seventy-five feet distant from the crossing behind the first southbound car. The evidence further tended to establish that the motorman upon this car did not give any signals as it approached the crossing, and when his car was about ten feet distant from the plaintiff, he had his head turned in another direction. Upon this state of facts the jury were authorized to find and to characterize the conduct of the defendant as negligent, and to exonerate the plaintiff from contributory negligence. It was the duty of the motorman to be observant of existing conditions as he approached *166the" crossing, and this related not alone to the position in which the plaintiff was placed, but also to the operation of the car upon the north-bound track. There was nothing to obstruct his vision. The car on the north-bound track was coming directly towards him. The position of the plaintiff was in plain view. He was bound, therefore, in the discharge of his duty to take notice of the approaching car and the position of the plaintiff.
As the latter was upon the crosswalk and was engaged in passing over the street, the defendant had no paramount right to the use of the same at that point, and it was bound to manage and operate its cars with a due regard to the right of the plaintiff and not abridge his right to a safe passage. (O’Neil v. D. D., E. B. & B. R. R. Co., 129 N. Y. 125; Buhrens v. Dry Dock, etc., R. R. Co., 53 Hun, 571; Zimmerman v. Union Ry. Co., 3 App. Div. 219.)
The defendant had created a situation of peril for the plaintiff. If he remained in the space between the tracks, he would be brought between two moving cars running in opposite directions, and such position, to say the least, is not free from danger. He was under obligation not to stand too close to the car, which he saw approaching on the north-bound track, and was bound to step far enough back to clear the overhang of the car. The space was quite narrow. Under such circumstances, if it was an error to step back so as to bring him over the rail of the other track, it was not such an act as to charge him, as matter of law, with negligence. The jury would be authorized to say that it was an error of judgment committed in an attempt to secure a safe place, and his act, therefore, would not necessarily be regarded as negligence. (McClain v. Brooklyyn City R. R. Co., 116 N. Y. 459 ; Hergert v. Union Ry. Co., 25 App. Div. 218; 2 Thomp. Neg. [2d ed.], §§ 1449-1452, and cases cited.) The most casual observation upon the part of the motorman would have at once disclosed that the plaintiff had paused to permit the passage of the north bound car, and that the relative position of the plaintiff and such car made it dangerous for the plaintiff to attempt a passage before it passed, and seeing this situation the motorman was bound to observe the duty which charged him with the obligation of so operating the car and controlling the same as not to come in contact with the plaintiff. The evidence tends to establish that, instead of being attentive to his *167duties in this regard, he was looking in another direction, gave no signals and ran his car in utter disregard of the plaintiff’s position and his rights upon the street. Of the existing situation the 'motorman was bound to take notice. (O'Malley v. Met. St. Ry. Co., 3 App. Div. 259; affd. on appeal, 158 N. Y. 674.)
The jury were, therefore, authorized to charge the defendant with negligence in the management and operation of the southbound car. So far as the plaintiff’s contributory negligence is concerned, the case is quite similar and, in application of legal principles, precisely like that of McCormick v. Brooklyn City R. R. Co. (10 Misc. Rep. 8), where the City Court of Brooklyn held that such question was for the jury, and this holding was affirmed upon appeal (150 N. Y. 584). The plaintiff had the right to assume that a car approaching upon either track would be operated, with a due regard to his right upon the street, and that it would be under control as it approached the crossing. (Frank v. Met. St. Ry. Co., 58 App. Div. 100.)
The condition which brought the two cars at the same time to the intersection of this street was produced by the acts of the defendant, and, as it was chargeable with notice that pedestrians would cross the street at such point, it was bound to have its car under control for the protection of such persons. It is manifest, therefore, that the plaintiff cannot be charged with contributory negligence, as a matter of law, in stepping back to allow the north-bound car to pass, when he had the right to rely upon the proper discharge of all the obligations which the defendant was under to him. Under these circumstances, I think the question was properly submitted to the jury and the verdict rendered has sufficient evidence for its support. Nor do we think that error was committed in the admission of the testimony of the physician respecting the character of the injuries which the witness discovered at the time he made his examination. The injuries were sustained on or about the 27th day of June, 1899. The witness first saw him on July second of that year and made an examination. He made another examination on February 12, 1902. He was asked what he discovered upon the last examination, and objection was made that the testimony was too indefinite and not connected in any way with the injuries sustained from the accident. The basis of objection was that there was *168no sufficient testimony to connect the conditions discovered by the physician in 1902 with the accident which was the basis of the complaint. The evidence of the plaintiff, however, was to the effect that his general health prior to the accident was good, that he had never known what sickness was, and that he had not met with any other accident or mishap since its reception. It is not contended but that the testimony of the physician was competent if the connection between the injury and the condition was established. The condition to which he testified was of the same character as existed when he first saw him on July 2, 1899, and was such as might have been produced by the injuries sustained, and this, coupled with the fact that the testimony of the plaintiff disclosed that he- had never been ill and had met with no other accident since this one, sufficiently showed the connection to make the testimony competent and proper.
There are no other questions which require consideration. It follows that the judgment should be affirmed, with costs to the respondent.
O’Brien, J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.