Lam of opinion that the evidence: was sufficient to take the case to the jury and to sustain the verdict; both on the main issues and *293with respect to the amount of damages, and that no error prejudicial to the rights of the appellant was committed upon the trial..
The decedent was a strong, healthy, intelligent man, in the enjoyment of all his faculties and forty-two years of age. He was in the employ of the defendant as a motorman, and had been employed by the street railroads in the city of Hew York upwards of twenty-five years, and was earning twenty-five dollars per week. He was both temperate and industrious. He resided at 419 West Fifty-third street, and on the 17th day of March, 1908, he was off duty. At about eleven o’clock in the evening of that day, while crossing the north-bound track of the surface street railway company of which the defendants are the receivers, on Hintli avenue on the northerly crosswalk of Forty-first street, the decedent was struck by a north-bound car and was instantly killed. The only eye-witnesses to the accident were strangers to him and, therefore, we have no information as to wheré he had been or whither he was going, excepting as it may be ’ inferred from the time of night and the location of his residence, which was twelve blocks northerly of the point of the accident. Just before the accident he was seen walking easterly at an ordinary pace, crossing Hintli avenue on the northerly crosswalk of Forty-first street, and as he stepped onto the north-bound track he looked toward the car, which was then approaching from the south and at a point below the southerly crosswalk of Forty-first street, according to the testimony of some of the witnesses, one or two houses below that point, and he held up his right hand, as if to signal the motorman to stop. It is probable that he intended to board the car which was going in the direction of his home. There was an electric light at the northwest corner of Forty-first street and Hintli avenue, and the elevated railway, supported by ordinary pillars, passes over the avenue at the locus in quo. The evidence tends to show that the car was coming very rapidly, that it did not slow down at the crossing and that the motorman did not have it under control, as was his duty in passing over the crossing, for it struck the decedent as soon as he had taken one or two steps on the track and while he was between the rails of the track, and pushed him along the track and rolled him under the car from that point to the middle of the block between Forty-first , street and Forty-second *294street before the car stopped. We may perhaps from common Observation take judicial notice that surface cars do not ordinarily pass, over intersecting, streets at such speed, that they cannot be stopped within 100 feet; but on the other hand common observation enables us. to say that at night when the streets are comparatively clear, this occurs at times. There can be no doubt that the motive power would have enabled the motorman to propel the car oyer this crossing at a highly dangerous speed. Therefore, the evidence with respect to the speed in view of the uncontroverted facts that the decedent was struck on the northerly' crosswalk and was carried about 100 feet before the car stopped is not improbable. The decedent liad a right to assume that the car was being operated at a proper rate of speed and was under control, unless he discovered, or by the exercise' of such care as a person of ordinary prudence would have exercised, he would or should have discovered the contrary. In the circumstances it cannot be said as matter of law that he should have discovered that the car was approaching at an excessive rate of speed and that it was to be run. over this crossing in utter disregard of his rights, as might, well be inferred from the facts attending the accident. I agree with the finding of the jury embodied in the verdict that the reasonable inference is that the decedent did not discover, and could not have discovered by the exercise of ordinary care, that, this car would overtake him before he had time to cross the track. W ith respect to the negligence of the defendant a verdict in its favor would be, I think, clearly against the preponderance of the evidence.
I, therefore, vote for affirmance.
Houghton, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.