The plaintiff, .as administratrix of David Axelrod, recovered a judgment against the defendant in an action brought for damages caused by'the death of her intestate under the following circumstances: On the evening of March 28, 1904, David Axelrod was a *91passenger on one of the defendant’s north-bound cars on Avenue A in the city of New York. He left the car near Ninetieth street. According to an ordinance of the city of New York then in force the car stopped below the south crosswalk at Ninetieth street and the decedent alighted at the proper place. After descending from the car he walked around the southerly end of it to cross to the west side of Avenue A. As he was crossing and while he was on or very near the westerly track he was struck by a south-bound car and killed. It appears by the testimony of one Walters that he saw the intestate after he had passed around the back of the north-bound car and was between the east and west-bound tracks. This witness also testified that at that time he saw a car coming down town, being the same car which struck the plaintiff, in the block between Ninety-first and Ninetieth streets. From the testimony it would appear that when this witness Walters saw the south-bound car and the plaintiff’s intestate passing behind the. north-bound car, the former car, according to the measurements given in the testimony, was at least eighty or eighty-five feet north of the point at which the decedent was struck. The car from which he alighted had stopped at the place required by the ordinance. The car which struck him was proceeding at a great rate of speed and no signal was given and no bell was rung, and it seems to be admitted that negligence on the part of the motorman in charge of the defendant’s car was proven.
But it is claimed that there is no evidence to show that the plaintiff’s intestate was free from contributory negligence. There is no positive evidence that he either stopped or looked or listened. It is settled in the law that in a case such as this less evidence is required of a personal representative as to contributory negligence of a decedent than would be required in the case of a surviving person. (Schafer v. Mayor, 154 N. Y. 472, citing cases.) Nevertheless the plaintiff’s intestate was bound to exercise reasonable care and if there is any evidence on this subject of contributory negligence, it was properly submitted to the jury. There may be,cases in which it appears from the whole evidence that even -if an intestate failed to look and listen that would not convict him of contributory negligence if he, under all the circumstances, would have been justified in attempting to cross the track. In such cases contributory negligence, as matter of law, cannot be attributed. There is evidence *92here to show that when the intestate undertook to pass to the west side of the avenue, the car which struck him was from ninety to one hundred'and twenty-five feet away. Walters testified: I had seen the south-bound,car coming down from the ferry before the north-bound car'came to a stop to let the deceased off. The southbound car when I first saw it was well up the block, well up the block when I first saw it; the block between Ninety-first and Ninety-second Streets; more than a block away from where the accident happened when 1 first saw that car.” .The witness further said: “I want the gentlemen of the jury to understand that when the north-bound car, the one on which the deceased had been a passenger, came to a' stop, the south-bound car, being the one that after-wards, struck him, was over a block away; over a block or about a block. And I want the gentlemen to understand that while the deceased was walking across the north-bound track and the space between the two tracks, this car traveled a distance of over a block — the car which afterwards struck, him, traveled a distance of over a block while he was walking that short -distance, about a block.”
I think it was for the jury to say, undhr these circumstances, whether it was negligence on the part of the plaintiff’s, intestate to cross without looking when the car was a block away from him when he started to cross. If he had seen that car he would have been authorized to believe that it was under the control of the motórman. We do not know whether the plaintiff did or did not lookj but had he looked aiid had he seen a car a block away when he passed behind the ear from which lie' alighted, it was for the jury to say whether it was contributory negligence in attempting to cross. In tiffs respect the case of Monck v. Brooklyn Heights R. R. Co. (97 App. Div. 447) is in point. Here it cannot be said, as matter of law, that had the plaintiff looked and had he. seen the approaching car he would have been chargeable with contributory negligence in proceeding to cross the tracks.
So far as the question of excessive damages is concerned, f think there is enough in the record to support the verdict.
I think the judgment should be affirmed.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.