The full presentation of the facts of the case, in the dissenting opinion of Mr. Justice Davis, is adequate to the application of the controlling rules of law.
It may be conceded that the proof of speed, failure of warning and violation of the ordinances was sufficient to carry the case to the jury upon the question of the defendant’s negligence. The charge of contributory negligence of the plaintiff is the serious inquiry here.
It is conceded that the plaintiff, upon alighting from the car, passed to the rear thereof and into a position where she was struck by an oncoming car upon the car track.
The nonsuit wa;s granted upon the authority of Reed v. Metropolitan Street R. Co. (180 N. Y. 315) and Schasel v. International R. Co. (185 App. Div. 196; affd., 230 N. Y. 538).
The rule as laid down in the Reed case is: “A person passing behind the rear of a car and stepping onto the track where a car may be approaching from the opposite direction, is bound to satisfy himself that the way is clear.”
This is but another way of stating that a person so conducting himself proceeds at his peril.
The statement quoted, as to stepping upon the far track, obviously applies to a case like this, where the plaintiff did not actually get upon or within the rails of the track, but so close as to be in the path of the approaching car, and thereby sustained injury. In other words, the mere fact that the plaintiff did not actually get upon the track may not be invoked to exonerate her from the charge of contributory *687negligence. She did get into the path of the car. Her conduct brought her within the reason and application of the rule enunciated in the Reed and Schasel cases cited.
The judgment should be affirmed, with costs.
All concur, except Kruse, P. J., and Davis, J., who dissent, each in a separate opinion.