Driving easterly on One Hundred and Twenty-first street at a smart pace, between seven and eight miles an hour, the plaintiff, as he approached Second avenue, saw a car about 150 or 200 feet away, three elevated pillars away, coming south at twelve miles an hour; thinking he could pass before it, he drove right on without slacking his speed or looking again, until his companion said, “ Look out,” and then he saw the car within about a foot of his hind wheel, and there followed the collision of which he complains. Although his statement of distances may seem inaccurate to anyone who ever passed titles in New York, the testimony of the plaintiff shows clearly enough that what happened, happened where the parties had similar rights and similar duties; happened, too, at least as much through the heedlessness of the plaintiff as of the servant of the defendant, for, as he said, he would have made no mistake if the motorman had turned off the current, and, if he himself had stopped, he would have avoided the collision. The complaint was rightly dismissed by the learned justice, and the judgment should be affirmed.
Freedman, P. J., concurs in the result; Leventritt, J., taking no part.
Judgment affirmed, with costs.