There is nothing in the record -before us which- shows,, even inferentially, that- the intestate exercised any care whatever before attempting to cross defendant’s tracks. On this point there is no dispute as to the facts.
On Avenue A in the city of New York the defendant operates two lines of cars, the tracks upon which the cars going in a northerly direction are run being on the easterly, and those going in a southerly direction on the westerly side of the avenue and the distance between them is a little over five feet., On the evening of March 28, 1904,-the intestate was a passenger on a north-bound car. He alighted at Ninetieth street, the car stopping for that purpose at 'the southerly crosswalk. -After leaving thenar he immediately-passed around the rear end of it and attempted to cross the tracks upon which the southerly cars were run- and in doing so was struck .and killed by á. car going in that direction. Whether he had succeeded in getting onto tlie track or was just in the act of doing so, did not appear. The only evidence bearing upon -his act after leaving the north-bound car was the testimony of the plaintiff’s witness Walter, who. stated: “ 1 first seen .the man when he started to walk around . the north-bound car, as I take for granted he got off. There was a north-bound car there, at the time. The north-bound car when I *89first saw it was stopped at the southwest corner of Ninetieth Street. * * * I didn’t see the man do anything but walk from the time I saw him. He walked westerly; in a westerly direction, straight. There was nothing unusual about his gait; nothing peculiar about it, not that I noticed. He was near the south-bound tracks when he was struck. I could not say he had crossed any part of the south-bound track. * * * The man was walking an ordinary walk. I could not say whether it was a fast or slow walk. A man’s ordinary walk. I did not see him look in any direction before he attempted to cross. He did not have anything in his hands.”
There was some conflict between the plaintiff’s witness and those called by the defendant as to just what happened immediately prior to the time when the deceased was struck by the car. But adopting the testimony of plaintiff’s witness — and his is the most favorable to her — Ido not see how this recovery can be sustained. The testimony does not show that the intestate exercised any care whatever. The car was lighted, there was nothing to obstruct his vision, the danger was apparent, and had he used his eyes, as he was bound by law to do, it must have been evident to him.
It may be conceded that there was sufficient evidence to go to the jury on defendant’s negligence, but that does not aid the plaintiff, because she was obligated to prove, before she was entitled to recover, that the intestate was himself free from negligence, and in this respect she utterly failed. ■ Defendant’s motions to dismiss the complaint at the close of her case and at the close of the trial should have been granted and the exceptions taken to the rulings denying such motions must be sustained. It is true that less evidence is required of a personal representative as to contributory negligence of a decedent than would be required in case of a surviving person. (Schafer v. Mayor, 154 N. Y. 466.) But in such cases some evidence must be given from which the jury can find the intestate did exercise the care required by law. Here, as already indicated, there was nothing which would justify such finding unless it be the death of the intestate, and that is insufficient. An inference cannot be drawn from a presumption that he would exercise care and prudence in regard to his own life and safety. ( Wiwirowski v. L. S. & M. S. R. Co., 124 N. Y. 420.)
*90Numerous authorities might be ’cited both in. the Gourt .of Appeals and in this court showing upon the factp here presented that plaintiff was not entitled to recover. The following, however, are sufficient : Perez v. Sandrowitz (180 N. Y. 397); Reed v. Metropolitan Street R. Co. (Id. 315);. Pinder v. Brooklyn Heights R. R. Co. (173 id. 519); Little v. Third Ave. R. R. Co. (83 App. Div. 330 ; S. C. affd., 178 N. Y. 591).
I am of the opinion that the judgment’and order, appealed from ; should be reversed, and a new trial ordered, with costs to appellant to abide event. ■
. O’Brien, P. J., Ingraham and Laughlin, JJ.,. concurred; Patterson,. J., dissented.