(dissenting):
The simple question presented on this appeal is whether there was any evidence to support the necessarily affirmative contention of the plaintiff that his intestate was free from negligence contributing to the accident. There is some uncertainty in the testimony of the plaintiff’s witnesses as to the exact location of the defendant’s cars at the time of this accident, and although there were five eye-witnesses called in support of the complaint, not one of them points out a single act on the part of the plaintiff’s intestate from which any fair inference of care can be .drawn. This is a nonsuit, and the plaintiff is entitled to all fair inferences, but the rule of law requires that the plaintiff must show affirmatively that his intestate was free from contributory negligence, and this fact does not appear from any reasonable construction of the evidence.
*454. The accident occurred near the corner of Fifth avenue and Thirteenth street at about nine o’clock on Sunday morning, the day being bright and clear. The plaintiff’s intestate was a passenger in the car going downtown. Just before the car reached Thirteenth street it came to a standstill, apparently at his suggestion, and the deceased, a boy fifteen years of age and concededly sui juris, stepped down into the street and started toward the curb on the right-hand side of the street, going down. He then turned, and passing to the rear of the car walked deliberately across the street in the direction of a drug store in which he was employed. The car from which plaintiff’s intestate alighted started immediately, and the witnesses substantially agree that it had reached the lower side of Thirteenth street when plaintiff’s intestate started to cross the Street. In the meantime a car on the uptown track had been approaching, running, according to the evidence, from fifteen to eighteen miles an' hour, and the only witness who testifies definitely says this car had reached the lower side of Thirteenth street or thereabouts when the intestate started to cross to the drug store. If this was the situation, and it is undisputed, both of .defendant’s cars were at the lower crosswalk on Thirteenth street, while the intestate was about ten feet above the upper crossing, leaving a clear space something more than the width of the street. The evidence is undisputed that with this situation he walked in his usual way across the street without, so fár as the record shows, looking in either direction, or taking any precautions whatever. One witness called by the plaintiff says that his face was in the direction of the drugstore on the opposite side of the street, and, although an opportunity was offered, no evidence was brought out to show that he ever looked in any other direction, although he was employed at the drug store, was sui juris, and must have known that there, were two tracks and that cars were- liable to be passing at any moment. If this is meeting the requirement of furnishing evidence of a lack of contributory negligence, then the rule of law in this respect.might as Well be abandoned at once.
It is true there are cases in the books where there were no eyewitnesses in which the courts have been disposed to accept very slight evidence of care, but we know of no case where there were numerous eye-witnesses in which it has been held that the plaintiff *455bad established his case by showing a state of facts where the accident could not reasonably have happened if the intestate had exercised any degree of care commensurate with the danger to be ■apprehended. The situation disclosed showed conclusively that the intestate might have seen the car approaching if he had glanced in the direction from which it was to have been expected ; all of the witnesses saw the car for nearly a block before the accident; if it was running very rapidly this fact must have been obvious to him at the short distance of across the street, and a moment’s delay, or a slight increase in his walk, would have obviated the accident. It is evident, however,.from the evidence that the intestate walked across the street without listening or looking; without taking any of the precautions which the situation demanded, and under such ■circumstances it is neither right nor proper to permit a jury to speculate upon the probabilities. The evidence is not capable of supporting any other inference than that of carelessness upon the part of the intestate, and the learned court properly granted the motion to dismiss.
Jenks, J., concurred.