(dissenting). I am unable to hold that the plaintiff was guilty of contributory negligence as a matter of law in this case. It appears from the evidence that the plaintiff, when at the curb, looked south and saw that the north-bound car was nearly a block away. She had a right to assume that it was under control, and would be operated with due regard to her rights. The evidence being that no bell was rung or other warning given by the motorman, the jury must have found the defendant negligent, which goes far towards acquitting the plaintiff of neglect. The south-bound car being near Sixty-First street, where she stood, and the north-bound car being a block away, the plaintiff -evidently calculated that the south-bound car would pass so quickly as to give her ample time to cross before the north-bound car could reach Sixty-First street. This seems to me merely an error of judgment, and, although the jury might have been justified in finding it was an act of negligence, I do not think that an appellate court should so find as a matter of law. The case of Frank v. Metropolitan Street Railway Co., 58 App. Div. 100, 68 N. Y. Supp. 537, appears to be an authority in point.
The judgment should be affirmed, with costs.