I am unable to concur in the opinion of Mr. Justice Patterson. There is no' evidence in the record before us to the effect that the deceased at any time looked in the direction of the approaching car which subsequently struck him, or took any precautions, whatever, to ascertain if it were dangerous for him to cross the street at the time when, and the place where, he did. On the contrary, it affirmatively appears from the testimony of plaintiff’s witness Scanlon and others that the deceased recklessly ran in front of the car and was struck just as he stepped upon the track. If he was sui juris, then he was guilty of negligence in not observing where the car was before attempting to cross the street; if he was not sui juris, then his parents were guilty of negligence in permitting him to go upon the street unattended, and in either case the failure to observe where the car was before he attempted to cross the street prevents a recovery. The accident occurred in the middle of a block and not at a crossing.
The case cannot be distinguished in principle from Weiss v. *600Met. St. Ry. Co. (33 App. Div. 221). I am unable to appreciate the distinction attempted to be made in the prevailing opinion, which is, as I understand it, that in the Weiss case the deceased observed where the car was before she. attempted to go upon the tracks, while in this case no such observation was made; in other words, the reasoning proceeds upon the theory that if one observes a car approaching and thereafter attempts to cross the street and is injured, he is guilty of contributory negligence, but if he does not look to see if a car is.approaching and blindly walks across.the street and is injured, it is “ for the jury, on the whole case, to pronounce upon the conduct ” of the person injured.
The defendant lias a right to move its cars in the street, but it must move them with care, to the end that persons using the street may not be injured. But it is no more obligated in this respect than persons using the street are to Use care to avoid being injured, and when a person fails to use such care and is injured he cannot recover because his own negligence contributes thereto. Here, as already indicated, there is no evidence that the deceased used any care whatever; on the contrary, he ran blindly in front of the car and thus was injured.
I think the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., concurred.
Judgment and order affirmed, with costs.