In this case, as in the recent cases of Schwarzbaum v. Third Ave R. R. Co. (60 App. Div. 274); Schoener v. Met. St. Ry. Co. (72 id. 23), and Pelletreau v. Met. St. Ry. Co. (74 id. 192), which resulted in decisions of this court adverse to the defendants therein, the plaintiff, after passing behind a car upon one track was struck, as lie-proceeded on his way across the street, by a car on the other track. In the Schwarzbaum Case (supra) it was said in the opinion : “ The plaintiff and her husband had their view obstructed until they were almost upon the uptown track, because of the south-bound car which had just passed. Moreover, the night was dark and rainy and they were underneath the elevated structure, and though the plaintiff says they proceeded carefully, looking up and down, the north-bound caréame upon them swiftly and without warning, killing the husband, who was a little ahead, and nearly striking the plaintiff.” Therein it further appeared that the injured man was found on the opposite side of the car. Here, on the contrary, it appears that the-plaintiff was proceeding, not on a dark, misty night, but in broad daylight; that after being shut off from view of the south-bound track for some time, while he waited for the uptown ear, which had stopped, to start and move on its way, he proceeded immediately over, walking fast, and was struck just as he reached the first rail.*333In that case also there was evidence that, when between the tracks, the plaintiff and her husband looked up and down, and though they did not perceive that the car was at hand, this was somewhat explained by the fact that the night was dark and misty and, had ■they seen the headlight, it would have been difficult to approximate its distance. Here the plaintiff testified that he looked and did not see, but it does not appear when he looked, nor why, if he looked just after leaving the uptown track, he did not on a clear day and with a straight track see the car.
In the Pelletreau Case (supra) the accident occurred in the daytime, but the day was rainy, and the plaintiff had alighted from a north-bound car with several companions, one of whom preceded her behind the stationary car and over the south-bound track and crossed safely to the other side. The plaintiff, knowing her friend was a few feet in advance of her, and hearing no warning, proceeded across and, though she looked, her vision was obscured to some extent by the north-bound Car, the space between the tracks at this point being very narrow. Here the plaintiff had seen no one precede him, and thus had not that reason for concluding that, had a car been at hand, a signal would have been given before he started over, nor so far as appears had he any reason for thinking he could cross in safety.
In Schoener v. Met. St. Ry. Co. (supra) the plaintiff was driving across the Bowery and saw two cars coming south, and concluded that he could cross in front of the one on the further track, which struck him, and though it appeared that the vision of the motorman of that car was obscured by the overlapping of the other car, it was held that the jury might find him negligent in not anticipating that vehicles might emerge upon his track, and that in the judgment exercised by the plaintiff in proceeding, he was not, as matter of law, guilty of contributory negligence. Here there is nothing to show that the plaintiff saw the car and judged that he would be able to cross in safety. It is true that he says: “ The car that hit me was about forty feet away when I first saw it.” But to this he adds: “ I was standing on the crossing, on the south crossing, on the downtown side: I was waiting to get across the avenue.” He then says he waited to let an uptown car pass, and that the center of it stopped in front of him while passengers were getting on or *334off. He also states that the uptown car, when he first saw it, was forty feet.away. If the plaintiff made a misstatement in saying that the downtown car was forty feet away, then there is no evidence as to what distance it was when he saw it, or that he saw it at all, his subsequent testimony being that, though he looked, he did not see it. If he did not make a misstatement, and the downtown car was forty feet away when he was standing on the crossing waiting to let the uptown car pass, which had stopped immediately in front of him, and thereafter when it went on he started to cross, it is evident that if the downtown car, which he saw, had not already passed, then he had every reason to believe it would be directly in his path. His testimony, however, is that after the uptown car started he “ went right behind it,” and when he got on the other side of the track he was hit, and that he had “ started to walk across fast.” There is, therefore, no basis, as there was in the Schomer case, for concluding, with respect to the conduct of the plaintiff, that he erred, if at all, merely in the exercise of judgment.
In this respect, also, the present case differs from Handy v. Met. St. Ry. Co. (70 App. Div. 26), where, as here, the appeal was from a judgment of nonsuit. There it appeared that the plaintiff’s intestate was crossing in the evening in front of a rapidly approaching south-bound car on Third avenue, which was well lighted, and there was nothing to obstruct his vision or that of the motorman. There was evidence that he “ was turned a little up the street ” and “ seemed to be looking in that direction,” and that when struck he had passed the middle of the track and was about to step off the westerly rail. The car was traveling fast and no effort was made to stop it, or warning given, and it proceeded some ninety feet after hurling the man to the west of the track. It was held that the subject of the negligence of the motorman and of the plaintiff’s intestate was for the jury, and that it was error to dismiss the complaint. Here, however, as already pointed out, there was nothing upon which the jury might even base a finding that the plaintiff was guilty of error of judgment, rather than of contributory negligence; and the absence of such facts or evidence is its distinguishing feature. The case of McDonald v. Met. St. Ry. Co. (167 N. Y. 66), cited and relied upon in Handy v. Met. St. Ry. Co. (supra), has no application, as the plaintiff failed to prove any facts from which the *335jury could infer that the injuries received were caused solely by the defendant’s negligence.
I concur, therefore, in the conclusion reached by Mr. Justice McLaughlin, that the judgment entered on the dismissal of the complaint should be affirmed, with costs.