(dissenting). Plaintiff seeks damage for the death of his intestate alleged to have been caused by defendant’s negligence. The deceased met her death by coming into collision *534with one of the defendant’s street cars. At the time she was crossing from the easterly to the westerly side of Ogden avenue at a point about two hundred feet north of East One Hundred and Sixty-seventh street, New York city. The complaint was dismissed at the close of the plaintiff’s evidence on the ground that the deceased was shown to be guilty of contributory negligence as a matter of law.
We are of opinion that this question was for the jury and that the judgment should be reversed and a new trial ordered. The burden of establishing contributory negligence was upon the defendant. (Civ. Prac. Act, § 265.) Plaintiff’s evidence would have justified a finding that the defendant’s car was traveling at a rate of speed estimated from fifteen to thirty miles an hour on a steep down grade and at a rate of twenty-five miles when it hit the deceased. The block in which the intestate was crossing was an unusually long one, estimated to be about three ordinary city blocks. The deceased resided on the easterly side of Ogden avenue and was seen by witnesses to leave the easterly curb and start rapidly across to the westerly side. There was no evidence tending to show that she looked after she left the curb, plaintiff’s evidence being to the effect that she looked straight ahead in the direction in which she was crossing.
The jury would have been justified in finding that she had reached the westerly rail of the downtown track on which the trolley car was traveling before she was hit. Plaintiff’s witness Rivers testified to this effect. While it is true that a statement given by him to the defendant shortly after the accident tended to impeach his credibility, in that he admitted having said in the statement that the deceased stepped on the easterly rail at a time when the trolley was but five feet away from her, his credibility was for the jury. They might well have accepted his testimony given at the trial rather than the prior statement.
Plaintiff’s evidence tended to show that the defendant’s motorman gave no signal and there was other evidence which would warrant a finding that he did not see the deceased before the accident. After the collision his car traveled a distance of from three to eighteen feet beyond its own length before it was stopped.
The testimony of the witness Rivers as to the relative position of the intestate and the trolley car finds support in other established facts. The deceased was hit by the right front side, of defendant’s trolley car and her body was found after the accident to the west of the westerly rail. This fact tends to support the testimony given by the witness on the trial, rather than that contained in his prior statement. If the deceased did not reach the easterly rail until *535the trolley car was five feet away, unquestionably she would have been thrown to the left, and to the east of the track, rather than to the right where her body was found.
Whether it was negligence on the part of the intestate to fail to look after she had once left the curb was for the jury. (Knapp v. Barrett, 216 N. Y. 230, 231.) They might well have found that the defendant’s trolley car was seen by the deceased before she left the curb and that it was at a sufficient distance to warrant her in believing that she could safely cross. That she misjudged the speed of the trolley car would not necessarily defeat her right to recover.
The judgment should be reversed and.a new trial ordered, with costs to the appellant to abide the event.
Martin, J., concurs.
Judgment affirmed, with costs.