The action is to recover damages for the negligent killing of plaintiff’s intestate while she was attempting to cross one of defendant’s tracks. The defendant is a Hew Jersey corporation, operates a ferry across the Hudson fiver from Hew York city to Fort Lee, and a double-track street railway running from that place to various, points in Horthern Hew Jersey.
In the evening of October 19, 1906, the deceased, in company with her husband and another man, were intending to board a north-bound car on Broad avenue, in whát is known as Palisades park. As they came to the far side of the avenue a car was observed going in the desired direction, and the husband and friend went ahead of the deceased to detain the car for her. Whether from unwillingness to delay or lack of understanding on the part of the conductor, he refused to hold the car and started it with the two men aboard. From the testimony on the part of plaintiff it is apparent that the deceased proceeded diagonally northward in the vicinity of the south-bound track in the hope of overtaking the car which her husband had boarded. A south-bound car coming at a rapid rate struck and killed her just as she was stepping over the outer rail of the south-bound track. It is also clear from the plaintiff’s own proof that the point of the accident was about seventy-*831five feet north of the intersecting street where the husband liad gotten aboard. Although there is some testimony that when the witnesses first observed the deceased she was four or five feet west of the south-bound track and in the vicinity of the northerly crosswalk of Central boulevard, it is manifest that the accident did not happen at that point, as the plaintiff now insists, but at a point considerably further north. The south-bound car carried a lighted reflector headlight which was very brilliant.
If it be conceded that the defendant was negligent in the speed at which the south-bound car was run, and that the motorman was careless in observing the movements of the decedent, still we are of the opinion that the judgment cannot stand because of the clear contributory negligence on the part of the deceased. She was walking toward the coining brilliantly lighted car. Her husband testifies that he heard a whistle, but whether the whistle sounded or not she was bound to look and to observe that a car was approaching upon the track which she was about to cross. The presumption is that she did look for it was something she could not help but see. Plaintiff’s counsel urges that the light was so bright that it blinded her, and that it was impossible, because of its brightness, for her to estimate its distance from her. These suggestions present no excuse. Had she only been injured and not killed, and had she testified that she looked, as the law compelled her to do, and did not see the light and the car, her testimony would have been deemed incredible as matter of law, and she must necessarily have been held guilty of contributory negligence in failing to exercise ordinary caution. (Dolfini v. Erie Railroad Co., 178 N. Y. 1.)
The plaintiff, a resident of the State of New York, was appointed administrator of the deceased on the ground that she, although a resident of the State of New Jersey, left property within the county' of New York consisting of a deposit in a savings bank to the credit of herself and her husband, “ or either.” On her death the husband drew out about one-half the amount, and on the trial testified that the other half belonged to his deceased wife. We are not prepared to say upon his testimony and the form of the deposit that none of the moneys belonged to the deceased, and that, therefore, the Surrogate’s Court had no jurisdiction to appoint the plaintiff administrator of her estate.
*832The accident occurred in the State of New Jersey and the defendant is a corporation organized under the laws of that State. The decedent and her husband and children were residents there. All the witnesses to the accident on both sides had to be imported to this State. In view of the pressure of business upon the courts of New York city, although the plaintiff may have had a technical right to bring the action here, it would seem that the trial should have been had in the other State.
In any event the verdict was against the weight of evidence as to lack of contributing negligence on the part of the deceased, and the judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.
Patterson, P. J., concurred.