The question to be determined is whether the plaintiff was guilty of contributory negligence as a matter of law. The jury was warranted in finding from the evidence, which is summarised in the opinion of Mr. Justice Merrell, and which is practically uncontradicted, that the plaintiff while proceeding westerly across Lenox avenue on the downtown or southerly crosswalk of One Hundred and Twenty-third street, looked to the north just before attempting to cross the first rail of the downtown trolley railroad track, saw a car rapidly approaching, with its front just above the northerly crosswalk, concluded that he could pass safely, proceeded on his way at a “ good fast gait ” and was struck by the car just as he was stepping off from the westerly rail. The car which was approaching' the crossing was at least twenty-nine feet to the north of the plaintiff when he attempted to cross. The relative rights and duties of pedestrians and motormen at street crossings are so well settled that it seems almost trite to restate the law; yet it is the logical approach to a correct conclusion. Referring to the rights of pedestrians and drivers in the use of city street crossings, Judge Werner said in Baker v. Close (204 N. Y. 92): “ There the right of passage is common to all, and both footmen and drivers are bound to exercise reasonable care for their own safety and the safety of others upon the street. The rigorous rule applicable to steam railroad crossings is necessarily relaxed at the usual street crossings, and the footman is not required, as matter of law, to look both ways and listen, but only to exercise such reasonable care as the case requires, for he has the right to assume that a driver will also exercise due care and approach the crossing with his vehicle under proper control. (Buhrens v. Dry Dock, E. B. & B. R. R. Company, 53 Hun, 571; affd., 125 N. Y. 702.) At such street crossings both pedestrians and drivers are required to exercise that degree of prudence *68and care which the conditions demand. (Brooks v. Schwerin, 54 N. Y. 343.) It is impossible to formulate any more precise definition of these relative rights and duties. The only modifications of this general rule, that there is an equality of right as between pedestrians and drivers in the use of the public streets, are that street cars which run upon a fixed or stationary right of way cannot turn aside to avoid collisions as other vehicles can, and to that extent they must have the right of way; and that a pedestrian who crosses a street at a place where there is no regular crossing may be chargeable with some additional vigilance because it is not a place set aside for the crossing of foot passengers, although even at such a place drivers are required to be watchful and careful. (Moebus v. Herrmann, 108 N. Y. 349.)”
Such difficulty as there is in applying these rules grows out of giving proper effect to the “ right ” of the pedestrian " to assume that a driver will also exercise due care and approach the crossing with his vehicle under proper control.” Previous to the important decision rendered in Knapp v. Barrett (216 N. Y. 226), there was considerable diversity of opinion as to whether or not one who sees an approaching vehicle or car, miscalculates the danger of attempting to pass in front of it, and is injured, may still be free from fault. It was said that he might in Buhrens v. Dry Dock, etc., R. R. Co. (supra), but the learned counsel for the appellant contends that “ The general language used in the opinion must be deemed to have been uttered with reference to the special facts of the case,” and complains that what was said in that case has caused considerable confusion, has been frequently misapplied, and should not be adopted as a scientifically correct statement of the law. But Judge Cardozo has carefully and precisely restated the law governing the relative duties of pedestrians and drivers of vehicles in the city streets in the recent case of Knapp v. Barrett (supra), and has expressly adopted the principle of the Buhrens case, saying: “ The law does not even say that because he sees a wagon approaching, he must stop till it has passed. He may go forward unless it is close upon him; and whether he is negligent in going forward, will be a question for the jury. If he has used his eyes, and has miscalculated the danger, he *69may still be free from fault.” In view of these decisions, it seems to me to be perfectly plain that where, as in this case, a pedestrian on a downtown crossing looks and sees an approaching car above the uptown crossing, fully twenty-nine feet distant, even though it is moving rapidly and with unslackened speed, he cannot be said as a matter of law to be guilty of contributory negligence if he attempts to cross and is struck just as he is leaving the far rail. The Court of Appeals undoubtedly meant what it said when it stated that the question of negligence is for the jury when one goes forward under such circumstances, and that “ If he has used his eyes, and has miscalculated the danger, he may still be free from fault.” This does not mean, of course, that one can absolve himself from negligence by merely attributing his act to an error of judgment, in a case involving no sudden danger or emergency. To find that the mis judgment did not constitute negligence, the jury must find that the plaintiff exercised such judgment as a reasonably prudent person would exercise under the circumstances. Naturally, Judge Cardozo leaves open the question of how far a car may be away from the pedestrian before it can be said to be “ close upon him,” when he says, “ He may go forward unless it is close upon him.” It would be clearly inadvisable to fix upon any specific number of feet as a yardstick with which to determine contributory negligence as a matter of law. Many circumstances enter into the question, and that is why it is usually a question of fact. Where one steps immediately in front of an approaching car and is struck as he steps upon the first rail, it is perfectly obvious that no judgment whatever has been exercised and that the act is one of mere heedlessness. Clearly, that is not anything like the situation with which we are dealing, where the plaintiff was on the downtown crosswalk and the approaching car had not quite reached the uptown crosswalk. Of course it would have been prudent to wait for the car to pass, but the rights of both were equal in the street and there was no legal obligation upon the pedestrian to give way. It is common everyday experience that it is practically impossible to cross any busy city thoroughfare without passing in front of an approaching vehicle. In so doing, the pedestrian must be vigilant and use *70the judgment that a reasonably prudent person would under the circumstances. Whether he has done so or not determines whether he is guilty or free from contributory negligence, which, as the Court of Appeals has held, is a question of fact for the jury.
Mr. Justice Merrell says, and lays great stress upon it, that “ here the plaintiff saw that the car was not going to stop at the crossing, but was bearing down upon him with undiminished speed.” I find no evidence justifying the conclusion that plaintiff “ saw that the car was not going to stop,” but the point is not whether the car was going to “ stop;” it is whether, if under control, it would be slowed down so as to avoid running over him unnecessarily. It is true that the car approached the crossing with undiminished speed, but what becomes of the rule, so often reiterated, that the pedestrian has the “ right ” to assume that the motorman is approaching the crossing with his car under proper control? This is one factor that enters largely into the pedestrian’s calculation andjietermines whether in attempting to cross he is merely taking a chance or is exercising judgment. A car “ under proper control ” can be appreciably slowed down within twenty-nine feet. This plaintiff almost escaped being struck, although no effort was made to slacken the speed of the car. The jury undoubtedly inferred, as they were warranted in doing, that the plaintiff assumed, as he had a right to do, that, being lawfully upon the street, the motorman would not deliberately run him down, but on the contrary would apply his brakes and slow down the car, which, if it had been done in this case, would, as the jury were entitled to find from the evidence, have avoided the accident. My own view is that the plaintiff was careless, not in venturing to cross in front of the car, but in failing to hasten his steps and endeavor to avoid being struck, and as a juryman I should have so found. But that is not the question in this court, for the law commits the determination of that fact to the jury. Neither is this a case that can be said to be against the weight of the evidence, for the evidence is practically uncontradicted and hfonly remains to draw the inference of fact.
In no event, as it seems to me, is this court warranted in rlismigRing the complaint, for after a previous verdict in favor *71of the plaintiff the issues of fact were sent back for a new trial. (176 App. Div. 490.) Upon that appeal, the evidence being much the same,' the point was made that the plaintiff was guilty of contributory negligence as a matter of law. But the complaint was not dismissed. Whether right or wrong, that decision has become the law of this case. The subsequent decision of the Court of Appeals in Ploxin v. Brooklyn Heights R. R. Co. (220 N. Y. 609, affg. 171 App. Div. 925) in no respect alters the situation, in my opinion, for the accident in that case occurred in the middle of a block where, as said by Judge Werner in Baker v. Close (supra), the pedestrian “ may be chargeable with some additional vigilance because it is not a place set aside for the crossing of foot passengers.” Neither can I see how the case of Woodward v. New York Railways Co. (164 App. Div. 658; affd., 221 N. Y. 538) affects the situation, for in that case the plaintiff, who was driving a wagon across Eighth avenue, looked uptown as she emerged from the street into the avenue and saw a car approaching about one block away, and then proceeded to drive across the avenue and paid no more attention to the car until she was nearly across the westerly tracks, when she became conscious that the car was right upon her. That was a totally different situation, for the plaintiff exercised no judgment whatever, was entirely oblivious to the approaching car, and did not look at all before driving upon the track; whereas, here, the plaintiff looked before attempting to cross the track and, as the jury found, made a miscalculation for which he was nevertheless free from fault. Two juries have passed upon these facts, and have found the defendant negligent and the plaintiff free from negligence, and I feel that well-established rules of law require that the judgment should be affirmed.
Laughlin and Page, JJ., concurred; Clarke, P. J., and Merrell, J., dissented.