This is a statutory action to recover for the death of George Du Frane, alleged to have been caused by the negligence of the defendant. The decedent, while crossing Amsterdam avenue from west *299to east, either along the northerly crosswalk or diagonally toward the northeast from the northwest corner of One Hundred and Eighty-first street and Amsterdam avenue, on the 19th day of June, 1901, was struck by a north-bound car just as he reached the northbound street railway track, and thrown between the north and southbound tracks, and from the injuries received he died on the same day.
No exception was taken upon the trial which presents reversible ■error. The jury had considerable difficulty in arriving at a verdict, as is manifest from their coming into court for further instructions •and subsequently returning to court and announcing their inability to agree, whereupon the court, after advising them that it was important that they should agree upon a verdict and making some ■suggestions with a view to bringing about an agreement, sent them -out again and a sealed verdict was rendered in favor of the plaintiff.
The motion for a new trial was made upon the ground, among other things, that the verdict was against the weight of the evidence, and, upon a careful review of the evidence, we are of the opinion that it should have been granted.
Amsterdam avenue is one hundred feet in width. The carriageway, from curb to curb, is seventy feet, and fifteen feet upon either side is occupied by the sidewalk. The street is paved with rough stones, referred to as cobblestones, but, doubtless, blocks of sandstone. A crosswalk extends across the carriageway along the northerly line of One Hundred and Eighty-first street. The defendant ■owns and operates a double-track street railway along the avenue. There is a space twenty feet between the inner rails of the tracks and a like space between the outer rails and the curb upon either side ■The space between the rails of each track and that occupied by the rails is approximately five feet. The accident occurred at about ■midday, and it is undisputed that there was no other car, vehicle or •other obstruction to the view up or down the avenue either way for a distance of three blocks. The evidence all indicates that the decedent was struck by the front extreme westerly or outer corner •of the car just as he was stepping upon the track and before he had reached a point between the rails. It thus clearly appears that he must have been struck while taking the first or,- at most, the second step which brought him within the range of the body of the ear, or, in other words, from a point of safety to a place of danger.
*300The plaintiff called three eye-witnesses to the accident and the defendant called five. The decedent was fifty-two years of age, was in the possession of all his faculties, except that there is a conflict in the evidence concerning whether his hearing was good, was a healthy, active man, having taken part in athletic contests (walking matches) and was at the time janitor of four houses and soliciting agent for the Police Gazette. He had been in the bar room of Porter’s Hotel, situated at the northwesterly corner of One Hundred and Eighty-first street and Amsterdam avenue, and there solicited and obtained an order for the Gazette for three months. He had an Angora lamb in a box, described as an egg box. On leaving the hotel he placed this box on his shoulder. The witnesses called by the plaintiff say he carried it on his left shoulder, which would not obstruct his view of a car approaching from the south, and the witnesses for the defendant say upon his right shoulder, which would obstruct such view. One of the witnesses for the plaintiff, who was standing on the northwesterly corner of One Hundred and Eighty-first street and Amsterdam avenue facing the avenue, says that the decedent paused for a minute at the curb, looked up and down the avenue and then passed directly along the crosswalk east with his head facing in the direction in which he was going until the time he was struck ; that at the time the decedent was at or just about the southbound track the car was only fifty, seventy-five or eighty feet away, coming up a slight grade at the rate of between fifteen and twenty miles an hour, and then says or about fifteen miles an hour, and he indicates a point upon a diagram about two-thirds the distance from One Hundred and Eighty-first to One Hundred and Eighty-second street where the car" stopped after the accident. He further testified on redirect examination that when the car was fifty feet from the decedent the latter was crossing the south-bound track and the motorman was looking in a southeasterly direction toward High Bridge with his back almost turned toward the decedent and so continued until after the accident, and he says that he heard no bell or gong. Another witness called by the plaintiff, who was standing on the porch of Porter’s Hotel facing the avenue, says that as the decedent left the curb and started across the track he looked up and down the avenue, and further on in his examination he says that this occurred when the decedent was crossing the south-bound *301track and that after thus looking up and down the decedent went straight ahead, until he was struck; that the car was from fifty to seventy-five to eighty feet away when the decedent was on the east-bound track — by which he evidently meant the south-bound track — and that the car was coming at “ a good fast gait; ” that it went nearly to One Hundred and Eighty-second street before stopping ; that the motorman was not looking ahead but toward the east and that he heard no gong. The third witness called by the plaintiff was coming down the easterly side of the avenue from a point between One Hundred and Eighty-second and One Hundred and Eighty-third streets. He says that he saw the decedent upon the curb in front of Porter’s Hotel and that the car was then a little below One Hundred and Eightieth street coming fast, at the rate of about fifteen miles an hour; that when the decedent was crossing the south-bound track the car was about one hundred feet distant ; that the car went thirty or forty feet or a quarter of the length of the block after the accident before stopping, and that as the car came up the avenue the motorman was looking across toward Washington Bridge. The plaintiff called another witness, a passenger who was on a south-bound car three blocks to the north and did not see the accident, but saw the man “ pitched ” and turn a somersault between the tracks.
According to the evidence of most of defendant’s witnesses the decedent was passing diagonally to the northeast and reached the track upon which he was struck at a point about twenty feet or more north of the northerly crosswalk. The conductor and motorman of the car testified that it stopped at some point below One Hundred and Eighty-first street to let off some passengers. The motorman’s evidence indicates that this was between One Hundred and Eightieth and One Hundred and Eighty-first streets and nearer the latter, and the conductor leaves it in doubt whether it was in the block above or below One Hundred and Eightieth street. According to the testimony of the motorman he slowed up as he approached One Hundred and Eighty-first street, was looking ahead and to the right and left for pedestrians and vehicles on One Hundred and Eighty-first street and that the decedent “ kind of stopped and started up for to walk quicker than he was; ” that the gong was sounded and he shouted to the decedent and reversed the car, *302but that the decedent paid no attention and kept right on. and stepped in front of the car when it had almost come to a stop; that the corner stanchion or handrail struck the box on decedent’s shoulder ; that he endeavored to reach the decedent over the dashboard to prevent his stepping on the track and that the car stopped within fifteen or twenty feet with the front of the rear wheel of the forward truck about opposite decedent’s head. He says that the car could not run up that grade, which was only slight, at a greater speed than eight miles an hour and that it was only running at half speed while crossing One Hundred and Eighty-first' street and was slowing down when it struck decedent. The testimony of the conductor, who had left the employ of the company and taken another situation, and who was on the running board on the easterly side and about the middle of the car, corroborates the motorman as to' the ringing of the gong, the speed, and as to the endeavor to stop and, reach the decedent over the dashboard. A motorman, who was in the employ of the company at that time, but had since left its employ, engaged in business for himself, was riding on the car, and his testimony also corroborates that of the motorman with reference to the speed of the car and the endeavor to prevent the decedent from stepping upon the track. An artist, who was a passenger on the car, testifies that when the car was sixty, seventy or eighty feet from the north crossing decedent was approaching the south-bound track on a brisk walk; that he saw the decedent again when only a few feet from the car and that at this time the car was slowing down, the bell ringing, and there was a commotion among the passengers ; that it came to a stop within ten or fifteen feet after the accident and that the body of the decedent was about opposite the middle of the car when it stopped. On cross-examination he repeats that when he first saw the decedent he had not reached the first track, but then says he does not remember whether he had passed this track, and on redirect examination he again states that the decedent had not at that time reached the first track.
Another witness called by the defendant was standing on the porch of the Porter Hotel and says that the decedent started diagonally across the street and stopped momentarily between the tracks when the car was fifty or sixty feet away, and then the decedent, suddenly started on again and continued until he was struck. He *303does not say that the decedent looked at the time of this momentary stopping, and, according to his evidence, the box was on decedent’s, right shoulder. He says that the car only went a foot or two after the accident and that the motorman rang the bell at a furious rate and reached over the dashboard in an endeavor to save the decedent. This is the substance of the material testimony of the eye-witnesses to the accident. Of course, it cannot be given in full, and there are contradictions and explanations not noted in this summary.
Assuming that it may not be said as matter of law that decedent was guilty of contributory negligence, yet. the undisputed facts with reference to this accident and the probabilities indicate quite clearly that the accident would not have happened and could not have happened in the manner that it did had he exercised proper care and caution for his own safety. If, as ■ the testimony of one of the witnesses for the plaintiff indicates, he did not look after leaving the curb, when the car was a little over a block distant and he had to travel a distance of forty-five feet before reaching the track on which it was approaching, and about fifty-two feet to clear that track, it would seem that he did not make the use of his senses of sight and hearing that he was called upon to make, and that a person of ordinary prudence would have made under the circumstances. The conclusion is irresistible from the evidence that the car must have been close upon him as he stepped from a point of safety to a place of danger. Assuming that the car was going at the highest rate of speed specified by any of the witnesses, it must have been not more than ten or twenty feet from him when he passed within its range. With nothing else to attract his attention or interfere with his hearing and with no obstruction to his view, at midday in the month of June, it would seem as if, had he exercised ordinary care and' caution, he would have discovered the presence of the car, which must have been crossing One Hundred and Eighty-first street before he reached a point of danger. If the box was on his left shoulder and he was passing directly along the line of the crosswalk practically at right angles to the track, it would seem as if this car must have been within the range of his vision, if his eyes were open, assuming that they were normal, even if he were looking straight ahead. If, as testified by another witness for the plaintiff, the decedent looked when at or upon the south-bound *304track when the car was within fifty to seventy-five feet, he still having twenty or more feet to travel before reaching the track upon which it was approaching and still more to clear that track, it is not easy to understand how he could go upon the track in the exercise of proper care and caution for his own safety, without again noting the location of the car. The rule is, of course, well settled that on a crossing like this the street railway and pedestrians have equal rights; but if either is negligent in exercising this’right he cannot recover any damages sustained, even if they might have been prevented by the exercise of ordinary cai'e on the part of the other. If a pedestrian reaches the track in time to cross it in safety, provided the speed of an approaching car be not increased, he cannot be said to be negligent in proceeding; but if it is apparent to him or would be to a person of ordinary prudence exercising ordinary care that the car will inevitably overtake him unless the speed is slackened, then it is not a prudent act for him to assert his rights and proceed, even though it be the duty of the motorman to slow down or stop to enable him to cross. In the case at bar the evidence is ample to show negligence on the part of the railway company ; but it is quite as essential to the plaintiff’s right of recovery that freedom from negligence on the part of the decedent be shown.
For the reasons already assigned we are of the opinion that this is a case where justice requires that we should exercise the power with which we are vested and the duty enjoined upon us of setting aside the verdict as against the weight of the evidence.
It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred; Patterson, J., dissented.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.