The facts are not in dispute, and the plaintiff having been non-suited,, is entitled to-have al-1 questions of fact’ involved in the evidence and all inferences which maybe legitimately drawn therefrom construed most favorably to him.
The defendant, a, domestic corporation,, at the time of the accident complained of, was engaged in operating a double-track street surface railroad, extending- along the center of Jefferson street, in the city of Buffalo, N. Y.,. which' runs north and south, and is crossed-at right angles by Northland avenue. Both ofz said streets are thirty feet in width between .the curbs. At about nine o’clock on the evening of the 9th day of May, 1903, plaintiff’s intestate, who was riding a .bicycle at a-moderate rate of speed going easterly along Northland •avenue, attempted to cross- the tracks of defendant’s railroad, and when upon the last or most easterly rail of defendant’s second track, was" struck by a car approaching from -the south,, and so injured as that death resulted.
The evidence quite conclusively shows, that the defendant, was guilty of negligence which caused the: accident,, at least it was of such a character as to make it a question of fact for the jury, because such evidence tends to show that the car as it approached tire crossing was going at a very high rate of speed, twenty miles an hour; that it was not,"under control as it approached Northland avenue,, and that it gave no signal or Warning of its approach. Indeed, the learned tidal justice apparently assumed in granting defend-' ant’s motion for a nonsuit that the evidence was sufficient to raise *557a question of fact as to defendant’s negligence; but the motion was granted solely upon the ground that the plaintiff failed to establish affirmatively that his intestate was free from contributory negligence.
Notwithstanding plaintiff’s intestate is dead, and, therefore, cannot state what precautions she took to avoid the accident, and that she did those things which a person in the exercise of ordinary care and prudence would have done under like circumstances, we will assume that the plaintiff cannot recover unless it may be reasonably inferred from the facts proven that the deceased did exercise such care and prudence, and that the burden of affirmatively establishing such proposition rests upon the plaintiff.
The evidence tends to show that upon the night in question plaintiff’s intestate was upon her bicycle going easterly along North-land avenue. The deceased was first seen riding at a moderate rate of speed in the center of Northland avenue, near the corner of a drug store, the east wall of which is twenty-four and a half feet west of the westerly curb of Jefferson street, and the north wall seventeen and a half feet south of the southerly curb of Northland avenue. She was on a line two or three feet east of the drug store and was headed east, going straight across the tracks. At that time the car which struck her was one hundred and fifty feet from the crossing, and was going at the rate of twenty miles an hour. She went across the first track, but before or just as she reached the track upon which the car was coming, she turned her wheel to the north, going to the farther side of the street, and tried to cross at that point, and was struck by the car at the north side of Northland avenue just as the rear wheel of her bicycle was leaving the easterly rail of the defendant’s most easterly track. When she turned her wheel to the north- the car had already reached the southerly line of Northland avenue.
From these few and simple facts we think it would have been proper for the jury to have inferred that in so attempting to cross she saw the car approaching, but that she assumed, as she had. a right to do, that the car would approach the crossing at a proper rate of speed and under such control as would enable it to be stopped before coming into collision with her, she being rightfully upon the crossing; that observing the defendant failed in the dis*558charge of its dirty in that regard, and being then about to go upon the track upon which-the car was approaching and being unable- to stop instantly, she turned her wheel to the north, went diagonally across the tracks to the farther side of the street, and was struck just as the rear wheel of .her bicycle was leaving the easterly rail of defendant’s most easterly track.
Reasonable care and prudence could not have been inore clearly proven than by the facts and circumstances disclosed - by the record if the deceased had been living and testified : “ When I got to a point within twenty feet of defendant’s -tracks I saw its car approaching the crossing 150 feet away. I supposed -that I -had ample time to cross in safety, as I would have had if the defendant had obeyed the duty imposed upon it by law, which 1 assumed it would do. When I got across the first track I discovered that such duty was not being performed by the defendant, and I was in a place of danger. I could not stop my wheel or turn back and sought to avoid a collision by turning to the north to the end that I might have greater space in which to make the crossing.” If plaintiff’s intestate had given such testimony we think it must be conceded that the question of her contributory-negligence would have been for the jury, and, as suggested, we think it-was permissible for the jury to have drawn precisely those inferences as to the acts and conduct of the deceased from the facts and circumstances disclosed.
It is not the law that' a person passing along a city street- upon a bicycle in the usual way, when he reaches a point 20 feet- from a street car track upon an intersecting street, and sees a car approaching 150 feet distant from such crossing, must stop and wait until such car has passed before he attempts to proceed, in order to be relieved from the imputation of negligence in case a collision occurs-. The practical result - of such a rule would be to declare that a railroad company has a paramount right of way at such crossing. The contrary has been repeatedly held. In. Zimmerman v. Union R. Co. (3 App. Div. 219) the court said: “ The wagon was being driven across the railroad, not within its tracks. The defendant’s car had no paramount right of way at the crossing. (O'Neil v. Dry Dock, etc., R. R. Co., 129 N. Y. 125.) The distance from the car to the crossing at the time Hadden sought to cross was such as to enable the wagon to pass safely, if the defendant’s car had been properly *559managed, and this Madden and the deceased had a right to expect. The wagon was prior in time at the crossing, and, therefore, prior in right. The driver was not bound to get out of the way of the car, nor can it be said to be negligence on his part that he proceeded, to cross at a walk.”
In the case of Lawson v. Met. St. R. Co. (40 App. Div. 308, 312) it was said: “ When one attempts to cross the track of a street car and has approached the track at such a distance from an approaching car that he has reasonable ground to suppose that he will be able to cross the track, it is the duty of the street car driver to give him a reasonable opportunity to cross, and if, for that purpose, it is necessary for him to check the speed of his car, or even stop the car entirely for a short space, it is his duty to do it, and the person crossing the track has the right, without being charged with contributory negligence, to assume that that duty will be performed.”
The rule is very concisely stated in Dunican v. Union R. Co. (39 App. Div. 497, 501) as follows: “ He (the plaintiff) had the right to cross the track, even though the ear was approaching, and even though the fact of his crossing required the car to slacken its speed (Kennedy v. Third Ave. R. R.,* 31 App. Div. 30); and whether he had sufficient opportunity to observe the approach of the car, or used due diligence in his effort to avoid it after he became aware of" its situation, was clearly a matter for th'e jury to determine.” (See, also, Johnson v. Rochester R. Co., 61 App. Div. 12 ; Smith v. Met. St. R. Co., 7 id. 253; Brozek v. Steinway R. Co., 10 id. 360.)
Many other cases might be cited to the same effect, all of which hold that it is not negligence ás matter of law for a pedestrian traveling upon a public street, a person driving a vehicle, or riding upon a bicycle, to attempt to cross,a street surface railroad track when a car is approaching 150 feet'away; that such traveler has the right to assume that the car so approaching is going at a proper rate of speed, is under control and will" slow down' or stop if necessary in order to avoid colliding with such traveler. Neither can it be said that such trayeler is, as matter of law, guilty of negligence because when he discovers that such car is riot going to slow down *560.or stop lie seeks to avoid collision by going farther from it and' ■attempts tó pass around it, although as a result an accident occurs.
Upon the evidence the jury would have been justified in inferring from the facts and circumstances proven that plaintiffs intestate did just that and nothing more, and, therefore, the .'question of her contributory negligence was for the jury.
It follows that the judgment and order appealed from should he. reversed and a new trial granted, with costs to the appellant to abidei event.'
All concurred ;■ Hash, J., not sitting.
Judgment and.order reversed and new trial ordered, with costs to the appellant to abide event.
Kennedy v. Third Ave. R. R. Co.— [Rep.