This is an appeal by the defendant from a judgment in plaintiff’s favor for personal injuries.
Plaintiff, a resident of the city of New York, a steamfitter *72by trade, on the evening of March 21, 1915, attempted to cross Lenox avenue at the southerly crosswalk at One Hundred and Twenty-third street, when he was struck by defendant’s south-bound car and severely injured. Attributing his injuries to the negligence of the defendant, and claiming that he himself was free from negligence which contributed to the accident, he brought this action to recover damages for such injuries.
Lenox avenue runs in practically a northerly and southerly course, and is eighty feet wide from curb to curb. One Hundred and Twenty-third street, running an easterly and westerly course, crosses Lenox avenue and, from curb to curb, is twenty-nine feet eight inches wide. Defendant’s double-track surface line runs about midway between curbs on Lenox avenue, the east track being the north-bound, and the westerly being the south-bound, track. From the easterly curb to the east rail of the north-bound trolley track it is thirty-two feet. The distance between the rails of each of the trolley tracks is approximately five feet. Between the two tracks there is a strip of about five feet in width. The distance from the westerly rail of the south-bound track to the westerly curb of Lenox avenue is thirty-one feet eight inches.
Plaintiff testifies that, on the night of the accident, which was Sunday, he left his home to go to a neighboring liquor store to procure a pint can of beer to be drunk with his supper. After procuring the beer he came down Lenox avenue on the easterly side, crossed One Hundred and Twenty-third street, and then started across Lenox avenue toward the west at the southerly crosswalk of One Hundred and Twenty-third street. He testified that before starting across Lenox avenue he looked up and down the street; that he saw nothing in the southerly direction, but bn looking northerly he saw a trolley car approaching on the south-bound or westerly track somewhere between One Hundred and Twenty-fifth and One Hundred and Twenty-fourth streets, and that it was running rapidly toward him. The street was well lighted and plaintiff’s vision was clear. He then testifies that after looking northward and seeing the rapidly approaching car, he started across Lenox avenue. At that time there was a north-bound car which had stopped right at the crossing, but *73that as he reached it this north-bound car moved along and he proceeded to cross. He says he crossed the north-bound track and, as he was on the strip between the two tracks and about to cross the south-bound track, he saw the car which he had first seen between One Hundred and Twenty-fourth and One Hundred and Twenty-fifth streets, just approaching the northerly crosswalk of One Hundred and Twenty-third street. He says the front of the car was just about at the crosswalk, and that it was still coming rapidly toward him, and coming about as fast as it had previously. Plaintiff testified that he thought he could get across without being hit, and proceeded on his way, traveling about the same gait as he had before, which he describes as “ a good fast gait,” and as he was about to step off the south-bound track he was struck by the car and received the injuries of which he complains. He testifies that there was no noise in the street, save that made by the approaching car, and that in attempting the crossing he thought he had plenty of room to cross without being hit. Plaintiff was rendered unconscious, and was carried to a hospital, where his injuries were treated.
The question was submitted to the jury as to whether or not the injuries to plaintiff arose from the negligence of the defendant’s motorman, and the jury was asked to determine the question whether or not the motorman was driving the car in a reasonably careful and prudent manner. The question as to whether or not the plaintiff himself was guilty of such carelessness on his part as would prevent a recovery herein was also submitted to the jury as a question of fact.
The appellant contends that the evidence presented such a state of facts as to render the plaintiff chargeable with negligence as matter of law, and that under the proofs he was not entitled to a verdict.
The plaintiff insists that he had a right to go to the jury upon the evidence, and that it was for the jury to say, upon all the evidence, whether or not, in attempting to cross the track in front of the car which plaintiff saw rapidly approaching, he was acting in a reasonably careful and prudent manner.
The learned trial court adopted the plaintiff’s theory, the case was submitted to the jury, both upon the question of the defendant’s negligence and upon the question of plaintiff’s *74freedom from contributory negligence, and the jury rendered a verdict in favor of plaintiff for $7,500. From the judgment entered thereon this appeal is brought.
This is the second trial of the action. On the first trial the case was submitted to the jury upon an erroneous charge. The jury found a verdict for the plaintiff for $6,000, and on appeal the judgment entered thereon was reversed and a new trial granted, because of such error. (176 App. Div. 490.)
I think the facts in this case require a reversal of the judgment, and that we must hold that the plaintiff was himself guilty of negligence which contributed to the accident which befell him, and which must preclude any recovery herein. The law is well settled in this State that where one sees a rapidly approaching car and takes the chance of getting across the track ahead of it, under circumstances similar to those disclosed by the evidence here, and is struck, he is guilty of contributory negligence as matter of law, and cannot recover for damages sustained by reason of his carelessness. Plaintiff appreciated that the car, which he had first seen between One Hundred and Twenty-fourth and One Hundred and Twenty-fifth streets, was approaching at a very rapid speed. In traveling a good fast gait, as he testifies, from the easterly curb of Lenox avenue to the strip between the trolley tracks, a distance of less than forty feet, and in again looking toward the north at the approaching car, he saw that it had covered the distance of over a block and was then upon the northerly crosswalk of One Hundred and Twenty-third street and still coming on at undiminished speed, and when he then, without waiting for the rapidly approaching car to pass; continued on without increasing his speed, and was struck before he had entirely crossed the track, it cannot be said that he acted with that reasonable care and prudence which the law required of him. When he lást looked, as he was about to step upon the south-bound track, he saw the car thereon but twenty-nine feet away and coming on with undiminished speed. His knowledge of the situation would not have been increased through any warning from the car, the rapid approach of which he fully appreciated. Common prudence would have impelled him *75to wait until the car had passed, or, at least, have quickened his steps. It cannot be said that he suffered through a mere mistake of judgment, as no reasonably prudent man would, we think, attempt the crossing under such circumstances. The decision in the case of Ploxin v. Brooklyn Heights R. R. Co. (171 App. Div. 925), recently affirmed, without opinion (220 N. Y. 609), involved a state of facts practically identical with those in the instant case. The determination of the Appellate Division in that case is reported in the following memorandum: “ Judgment and order reversed, with costs, and complaint unanimously dismissed, with costs, upon. the ground that the evidence establishes; as matter of law, that decedent was guilty of contributory negligence. The evidence, viewed in the light most favorable to plaintiff’s case, tended to establish that the decedent, having seen the well-lighted car, some thirty feet east of Lawrence street — that is, from one hundred and eighty to two hundred feet east of his position — approaching rapidly upon the further or northern track, started to walk across the street directly in front of the car, where he had a distance of fully twenty-nine feet to go in order to clear the approaching car; that when he came to the space between the two tracks and was about to step upon the further track, and then had about six feet further to go to be fully across, out of the way of the car, the car was only thirty feet away, still coming rapidly with unabated speed; and that, without at all increasing his speed, he continued his walk and was struck as he was passing over the further rail — that is, after he had walked about five feet more; and that there was, throughout his passage from the curb, nothing to obstruct his view or distract his attention from the approaching car. (Zucker v. Whitridge, 205 N. Y. 50; Lofsten v. Brooklyn Heights R. R. Co., 184 id. 148; Peterson v. Ocean Electric R. Co., 161 App. Div. 720; Wecker v. Brooklyn, Queens County & S. R. R. Co., 136 id. 340.)”
While in Ploxin v. Brooklyn Heights R. R. Co. the accident occurred in the middle of a block, I do not think such circumstance distinguishes that case from the case at bar, because here the plaintiff saw that the car was not going to stop at the crossing, but was bearing down upon him with *76undiminished speed. (See, also, Walsh v. Brooklyn, Queens County & S. R. R. Co., 169 App. Div. 166; Wecker v. Brooklyn, Queens County & S. R. R. Co., 136 id. 340; McCabe v. International R. Co., 143 id. 710; Woodward v. New York Railways Co., 164 id. 658, and cases there cited; affd., 221 N. Y. 538.)
The case of Woodward v. New York Railways Co. (supra) arose in this department. In that case the driver of a horse attached.to a light vehicle attempted to cross a trolley track in front of a street car, which the driver saw approaching a block away, and was hit by the car before getting across. The driver brought action to recover for injuries which she sustained, and which she alleged were caused solely by the negligence of the defendant street car company, and at Trial Term recovered a verdict. Upon appeal from the judgment entered thereon, this Appellate Division held, by a divided court, that the driver was guilty of contributory negligence as matter of law and could not recover, and the complaint was dismissed. The Court of Appeals affirmed the judgment of this court, without opinion, by a decision handed down May 25, 1917, several months after the determination of the former appeal herein.
The respondent urges, with considerable plausibility, that the reversal of the judgment entered upon the first verdict in this case was based upon the erroneous charge of the court upon the trial, and that, in basing the reversal upon such grounds and directing a new trial, this court had held, by implication, at least, that the circumstances presented a question of fact for the determination of the jury as to the contributory negligence of the plaintiff. The case of Ploxin v. Brooklyn Heights R. R. Co. (supra), in its facts so identical with the case at bar, was decided by the Appellate Division of another department, and is reported in a brief syllabus in an inconspicuous place in volume 171 of the Appellate Division Reports, 925. At the time this case was here on the former appeal, the unanimous affirmance of the Ploxin case in the Court of Appeals had not been announced, and the Court of Appeals had not decided the Woodward case. Upon the determination of the former appeal in the case at bar this court believed that the evidence had been submitted to *77the jury under erroneous instructions prejudicial to defendant’s rights, and for that reason granted a new trial. Had the decisions of the Court of Appeals in the Pbxin and Woodward cases been then brought to the attention of this court, undoubtedly it would have held that the plaintiff was guilty of contributory negligence as matter of law, and the complaint would have been dismissed.
Entertaining the opinion that, under the evidence, plaintiff cannot recover, it is unnecessary to consider errors which the appellant claims occurred in the trial court’s charge in submitting the case to the jury.
The judgment and order appealed from should be reversed, with costs, and plaintiff’s complaint dismissed, with costs.
Clarke, P. J., concurred.
Judgment and order affirmed, with costs.