(dissenting). The decision about to be made sets aside a verdict in favor of the plaintiff. The complaint is dismissed on the ground that the defendant was not negligent, and plaintiff was guilty of contributory negligence as a matter of law.
I understand the rule to be that where a verdict is directed or a complaint is dismissed, there must be no evidence which presented a question of fact in favor of the plaintiff. (Carlisle v. Norris, 215 N. Y. 400, 403; McConnell v. Hellwig, 190 App. Div. 244.) If there is conflict in the evidence, the verdict is deemed to have settled it favorably to the plaintiff (Ozogar v. Pierce, B. & P. Mfg. Co., 134 App. Div. 800); and on such dismissal plaintiff is entitled to have considered favorably every fact established on the trial, and must be given the benefit of the most favorable inferences that can be drawn from all those facts. (Westfall v. Leamon, 198 App. Div. 1; Hancock v. Steber, 208 id. 455; Foulke v. N. Y. Consolidated R. R. Co., 228 N. Y. 269, 271.)
It is only when the right of recovery rests upon conceded facts or those that are undisputed and cannot be varied upon another trial, that an appellate court is justified in awarding final judgment. (Dixon v. James, 181 N. Y. 129; Riker v. Gwynne, 201 id. 143.) It will render such judgment only where it is perfectly plain that no possible state of proof directed to the issue will permit a plaintiff to recover. Upon reversal, unless it appears with certainty that plaintiff cannot in any event make proof sufficient to sustain the cause of action, a new trial must be ordered. (Foot v. Ætna Life Ins. Co., 61 N. Y. 571; Heller v. Cohen, 154 id. 299; Seaward v. Davis, 198 id. 415.) The additional powers conferred by section 1317 of the Code of Civil Procedure and section 584 of the Civil Practice Act do not contemplate that in cases tried before a jury *390the appellate court is empowered to act as an “ appellate jury ” and reach a different conclusion on disputed facts, rejecting the facts accepted and the inferences made by the jury and drawing new inferences as the basis of a final determination. (Getty v. Williams Silver Co., 221 N. Y. 34, 39.) It is a fundamental principle that questions of fact are to be tried in a court of original jurisdiction. (Hirsch v. New England Nav. Co., 200 N. Y. 263, 265.)
In this case there is evidence that plaintiff came out of a store on the north side of Broadway in Schenectady (a street there running east and west) and started to cross in the usual manner to a stop for street ears on the south side. The street car he proposed to take was already in sight. An automobile headed west was parked on the north side of the street near the store. It does not appear whether it was an open or closed car, or how much it obstructed the view. The street is 55 feet wide, paved, and double street car tracks are laid in it. The plaintiff stopped at the curb, looked both ways, passed in front of the car at the “ crossover,” and went forward, looking both ways again. To his left at a distance estimated by witnesses at from 50 to 300 feet, the street turned at right angles thereby obscuring his view of an automobile coming from that direction until it made the turn, although of course it could be seen earlier by a witness standing across the street. He proceeded several feet (there is dispute as to the distance) to a point near the northerly rail of the street car track when he saw defendant’s automobile bearing down upon him, coming about twenty-five miles per hour ■— faster than the average speed at which cars ran there.. There were no other automobiles on the street at the time. Believing that he was about to be run over, plaintiff jumped back but was struck by the handle of the door, knocked down and seriously injured. Defendant went on for 150 to 200 feet when he stopped for a second and then turned into a side street and went on until a bystander who had witnessed the accident stopped him and took the number of his car. He said to this witness, “ he ran in front of me.” It does not appear that defendant returned even then. On the trial he denied all knowledge of the accident.
The accident occurred January 17, 1925, and there was ice and snow on the street. It does not appear that the defendant gave any warning of his approach to the man directly in his path as the law requires (Gen. Highway Traf. Law, § 13, subd. 2), checked the speed of his car or turned it from its course to avoid plaintiff. It is a fair inference that the defendant was not vigilant; that he exercised no care whatever to avert the accident; and that in view of the icy condition of the street he was proceeding at a *391reckless rate of speed at a point where pedestrians might be expected to cross. The plaintiff had twice looked to see that the way was safe before he went into the street. He was not b0ound as a matter of law to look again. (Carr v. Pennsylvania R. R. Co., 225 N. Y. 44; Knapp v. Barrett, 216 id. 226.) He made diligent effort to extricate himself from his position of peril, and probably would have escaped had defendant given any warning of his approach or checked the speed of his car.
These are the facts and inferences supporting the verdict that defendant was negligent and plaintiff free from blame. Upon this state of facts the complaint is now dismissed. It seems to me that under such a rule a pedestrian would have no right to cross a street at any time it was being used by an automobile. I do not assent to that doctrine; nor do I believe the courts should be zealous to find a man guiltless who runs away when his automobile has knocked a man down helpless in the street.
The case is similar in its facts to Kupperberg v. American Druggists Syndicate, Inc. (212 App. Div. 311) where a judgment dismissing the complaint was reversed. (See, also, Redmond v. Maitland, 23 App. Div. 194.)
I dissent and vote for affirmance.
Whitmyer, J., concurs.
Judgment reversed on the law, with costs, and complaint dismissed, with costs.';-,