I do not concur in the affirmance of this judgment, as I think there was no evidence to justify a finding that the defendant was ' negligent or that the plaintiff was free from contributory negligence. The plaintiff testified that he was unable to see the approaching car, and it is, quite evident that he could not, as the car from which he had just alighted was between him and the approaching car. He passed behind the car from which he had just alighted and, without looking* stepped upon the easterly rail of the south-bound track, and as he stepped he was struck by the car approaching upon tha,t track. If the plaintiff could not see the approaching, car, the motorman of the approaching car could not see the plaintiff; and there is no dispute but that the plaintiff was struck as he first stepped upon the track. There was nothing here that would justify the jury in finding .that the defendant was negligent, or that the plaintiff was free from contributory negligence.
I think, therefore, that the judgment appealed from should be reversed and a new trial ordered.
Van Brunt, P. J., concurred.
Judgment and order affirmed, with costs.