The plaintiff could not recover without proving that her intestate was free from negligence, and in this respect I think she failed. I am unable to find in the record any evidence to sustain the finding that the intestate exercised any care whatever before attempting to cross the tracks on which the car which killed him was running. Had he exercised any care, had he looked, he would not have lost his life. The facts immediately connected with and surrounding the accident are disputed. The intestate, at about eight-thirty p. m., on December 18, 1908, attempted to cross Third avenue, when he was struck by one of the defendant’s north-bound cars and killed. *206He was proceeding easterly, and when he reached the westerly curb of Third avenue the car which subsequently struck him was visible, being then about the middle of the block between Seventeenth and Eighteenth streets. It was traveling at the rate of from fifteen to eighteen miles an hour and he was walking at the rate of about three miles an hour. Whether he looked when he left the curb does not appear, but if he did so he certainly saw the car. When he reached a point between the rails of the south-bound track — which was several feet from the north-bound track — the front of the north-bound car was at the southerly crosswalk of Eighteenth street and still moving at the same rate of speed. At that time the rear end of this car was opposite the rear end of a south-bound car, according to the testimony of plaintiff’s witness Kurth, and the intestate was then walking, according to the plaintiff’s "witness Zuffel, at an ordinary rate of speed; “ his head was level, I mean straight, just as a man would carry himself ordinarily.” The proximity of the car to the intestate and the manner in which he was walking were such as to indicate to this witness, who was several feet further away from the car than the intestate, that there was going to be a collision “ and the man would be hit by the car.” He testified: “ I saw both this man and the car before they came together. I saw the car coming and the man coming, and I realized that there was going to be a collision and the man would be hit by the car. * * * This man was struck by the car just as he was stepping onto the westerly rail, the nearest rail to him, of the track on which the car was running. That is correct. When I reached the conclusion that this collision was going to take place and this man was going to be struck by the car, he was on the other track.” The other track referred to was at least five feet four inches from the nearest rail of the track on which the car which subsequently hit him was running. Had he looked when at this point he could not have helped but see the car. It "was lighted and there was nothing to obstruct his vision. He continued in the direction in which he was going and was struck by the car just as he was stepping over the first rail of the north-bound track or, according to plaintiff’s witness Avery, “ When the man put his foot on the track was when he saw the car. Before he could get out of the way the car struck him. He might have had his foot on the track.” The *207same witness testified that it appeared as if the intestate noticed the car and “ tried to jump back out of the way, but before he could get back out of the way the car had struck him.”
The case was submitted to the jury, evidently upon the theory that the evidence would justify a finding that if the intestate had looked he would not have been able to see the car; that his vision was obstructed by the elevated railroad pillars, the' south-bound car and the atmospheric conditions. There was some proof that it was misty, but the uncontradicted evidence of the plaintiff’s witnesses, who saw the accident, is that the car was visible at least half a block away at the time when the intestate left the curb; and immediately preceding the time he was struck, another witness, as we have already seen, much further away, saw the car and the intestate and concluded from the manner in which both were proceeding that there was going to be a collision. The south-bound car could not have obscured his view, because it had completely passed the north-bound car when the intestate was on the south-bound track several feet to the west of the north-bound track. That the elevated railroad pillars could not have obscured his vision while at this point is clearly shown by the exhibits in evidence. The record shows, as it seems to me, that the intestate stepped directly in front of the car, and had he exercised any care whatever before doing so, the unfortunate accident would have been avoided. Under such circumstances the complaint should have been dismissed. (Baxter v. Auburn & Syracuse El. R. R. Co., 190 N. Y. 439; Bambace v. Interurban St. R. co., 188 id. 288; Lofsten v. Brooklyn Heights R. R. Co., 184 id. 148; Flynn v. Joline, 135 App. Div. 291; McAuliffe v. New York City R. Co., 122 id. 633; Margulies v. Interurban St. R. Co., 116 id. 157; West v. Metropolitan St. R. Co., 105 id. 373; Knapp v. Metropolitan St. R. Co., 103 id. 252; Greene v. Metropolitan St. R. Co., 100 id. 303; Muessman v. Metropolitan St. R. Co., 76 id. 1; Madigan v. Third Ave. R. R. Co., 68 id. 123; Weiss v. Metropolitan St. R. Co., 33 id. 221; affd., 165 N. Y. 665.)
There was some proof to the effect that the defendant’s cars were accustomed to stop at the south crossing of Eighteenth street, and it is suggested that the intestate had a right to rely at the time in question on their coming to a stop at that point. But even if that *208were the custom, it did not justify the intestate in heedlessly walking across the track or stepping directly in front of the car. (Thompson v. Metropolitan St. R. Co., 89 App. Div. 10.) And in addition to this the trial court charged that the deceased, “ as a matter of law, did not have the right to rely on the motorman’s stopping on the south crosswalk.” Such instruction became the law of the case and was binding upon the jury.
I am also of the opinion that the judgment should 'be reversed for an error in the admission of evidence. During the course of the trial a witness, after stating that he had frequently been upon the streets with the intestate and had had opportunities to observe his conduct in crossing the same, was asked the following question : “ Q. State what you observed as to his manner of crossing railroad tracks while in your company ? ” The question was objected to on different grounds which were overruled, an exception taken, and the witness answered: “ A. When we were about to cross railroad tracks he usually looked to the right and to the left of him and put a restraining hand on my arm before crossing, to make sure that there were no vehicles of any kind coming.” A motion was then made to strike out the answer as incompetent and not relevant to the issues. The motion was denied and an exception taken. The purpose sought to be accomplished by the introduction of this evidence is obvious. It was to show a habit of carefulness on the part of the intestate, as tending to prove that he was prudent and careful on the occasion when he was killed. But the fact that he had exercised care in crossing streets on certain occasions when observed by the witness did not establish that he was careful at the time in question ; in other words, a person who is careful on one occasion may be careless on another. The circumstances may induce prudence at one time, while at another they may not even suggest it. It is a matter of common experience that even the most prudent man and careful will, at times, be careless. A finding based upon such evidence is purely speculative, and, as suggested in many of the authorities, introduces an issue not tendered by the pleadings. So far as I . have been able to discover there are only two States in which it has been held that such evidence is admissible (Davis v. Railroad Co., 68 N. H. 247; Missouri Pacific R. R. Co. v. Moffatt, 60 Kans. 113), while the contrary has been held in many of the States (Con*209nors v. Morton, 160 Mass. 333; Robinson v. F. & W. R. R. Co., 7 Gray [Mass.], 92; Peoria & P. U. R. Co. v. Clayberg, 107 111. 644; Baker v. Irish, 172 Penn. St. 528 ; Dalton v. C., R. I. & P. R. R. Co., 114 Iowa, 257; Chase v. Maine Central R. R. Co., 77 Maine, 62; Morris v. East Haven, 41 Conn. 252; Propsom v. Leatham, 80 Wis. 608), and in the Federal courts (Louisville & N. R. Co. v. Summers, 125 Fed. Pep. 719). There seems to be very little authority in our own State, but so far as the subject has been referred to, it would seem that such evidence is not admissible. Thus in Eppendorfv. B. C. & N. R. R. Co. (69 N. Y. 195) action was brought to recover damages for an injury sustained while attempting to get on one of the defendant’s moving cars. The defendant offered to show that the plaintiff was in the habit of jumping on its cars when in motion and it was held that the evidence was properly excluded, the court saying: “It is impossible to perceive what bearing the evidence offered could have * * * The sole question to be determined here, so far as relates to plaintiff’s alleged contributory negligence, was the character of the plaintiff’s acts under the circumstances existing at the time; and what he may have done at some other time under other circumstances, could have no bearing upon that question.” (See, also, Warner v. N. Y. C. R. R. Co., 44 N. Y. 465, 472.)
And in Wooster v. Broadway & Seventh Avenue R. R. Co. (72 Hun, 197) Mr. Justice Follett, speaking for the General Term, said : “ It has been many times held that it is not competent for a plaintiff to give evidence that the person by whom the alleged negligent act was committed had previously committed similar acts, or that he was generally negligent or unskillful.” (See, also, Senecal v. Thousand Island Steamboat Co., 79 Hun, 574.)
' In Parsons v. Syracuse, Binghamton & New York R. R. Co. (183 App. Div. 461) a quite similar question was considered. There action was brought to recover damages for the death of plaintiff’s intestate, who was killed while crossing the railroad tracks of the defendant. There were no eye witnesses of the accident, and for the purpose of showing that the intestate exercised care before going upon the tracks, witnesses who had frequently seen, him cross the tracks were permitted to state the care which he took before doing *210so. It was held that the admission of this evidence necessitated a reversal of the judgment. Mr. Justice Chester,.who delivered the opinion, in which all of the other justices concurred, said : “ The only question presented for determination on this branch of the case is whether evidence of specific instances of care prior to the accident was competent on the question of care at the time of the accident. A man who is careful on one occasion may be careless on another. The circumstances at one time may be such as to induce prudence while they might not at another time ; but the worst feature of this class of evidence is that it presents issues for trial not tendered by the pleadings, and which the opposing party is not prepared to meet. If this evidence was competent for the plaintiff it would be just as competent for the defendant to prove that on prior occasions the plaintiff’s intestate had been careless; that also on other nights when this engineer ran his engine over this crossing he had run it slowly; that he had his headlight burning; that he rang his bell and blew his whistle, and that he had been seen many times on prior occasions to observe all these precautions. It would also be competent for the plaintiff to dispute such testimony and to show that on prior occasions he had been careless. Thus the issues would be largely multiplied, and no party going to trial would know in advance what he would have to meet.”
The judgment and order appealed from should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.