It is certainly elementary law that a plaintiff has in this State the burden of showing, not only that the defendant was negligent, but that the plaintiff was free from contributory negligence. While I am unwilling to concur with Mr. Justice Giegerich in his statement as to the duty of care on the part of a chauffeur driving in the city streets, I believe that there are few, if any, automobile accidents which a careful chauffeur could not avoid, unless the pedestrian was himself at fault. An automobile has no exclusive right of way, either at crossings or between crossings ; and the driver should at all times have his machine under such control that he will not injure a pedestrian in full possession of his faculties who himself uses ordinary care. ¡Nevertheless, the pedestrian is also bound to use due caution to avoid an accident and must show, as part of his affirmative case, that he did use due caution. To meet this burden the plaintiff has testified that he looked both ways before he started to cross the street. The uncontradicted evidence totally discredits this testimony, as shown in the opinion of Mr. Justice Giegerich. He either did not look towards Fifth avenue or, if he did, he saw this machine and deliberately walked into the danger. There remains, therefore, no credible testimony that will show an absence of contributory negligence. To affirm the verdict of the jury, we must hold that, where a person crosses a street without looking for approaching vehicles, he is not guilty of contributory negligence, if he is struck by a vehicle on the wrong *513side of the street where he had no warning of its approach. Such a doctrine appears to me both unreasonable and without authority. It is true that, in the case of Moebus v. Herrmann, 108 N. Y. 349 at 354, the court said: “The duty imposed upon a wayfarer at the crossing of a street by the track of a railroad, to' look both ways, does not as a matter of laAv attach to such person when about to cross from one side to the other of a city street. The degree of caution he must exorcise will be affected by the situation and surrounding circumstances.” This statement of law must, however, be considered in connection with the facts of that case. The plaintiff in that case was a child of seven years; and the trial judge charged the jury that “a child of immature years, whilst bound to exercise care, is held to.no higher degree of forethought than you could expect of his age.” The plaintiff had testified that he “ would, if he saw a wagon coming, wait until it passed,” and that at the time of the accident he was looking “ straight ahead.” The Court of Appeals simply decided that, under these circumstances, the child’s contributory negligence was not a question of law but one of fact for the jury. Its statement of the distinction between the duty of care when a person is about to cross from one side of a street to the other side, and when he is about to cross a railroad track, was made for the purpose of distinguishing the case then before the court from the case of Wendell v. N. Y. C. & H. R. R. R. Co., 91 N. Y. 420, in Avhich-it decided that contributory negligence of even an infant of seven years was established, when it appeared that he crossed a railroad track while he could have seen an approaching train had he looked.
But what may be sufficient to show due care on the part of an infant of seven years does not necessarily show due care on the part of an adult business man.
I think that the plaintiff herein has totally failed to show such care; and the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
Judgment affirmed, with costs.