Lead Opinion

O’Brien, J.:

The action is to recover damages for the death of plaintiff’s husband, who was killed opposite the entrance to the elevated railroad on One Hundred and Thirty-eighth street between Willis and Alexander avenues on the early morning of September 9, 1901, by an east-bound trolley car of the defendant as he was proceeding to the south side of the street after having alighted from a westbound car which stopped at that point for the purpose of transferring passengers to the elevated railroad.

Although the deceased, as testified, left the west-bound car before it had quite come to a stop, that car did stop opposite the entrance of the elevated station and passengers alighted therefrom, and the motorman of the east-bound car admitted that he had observed that car coming to a stop and had slackened his speed and was half clear of the car when he released the power and then it was too late to avoid running over the plaintiff’s intestate who came from directly behind the west-bound car and had *604reached the north rail of the east-bound track. It was further testified that the east-bound car approached without warning and did not stop until it had passed some forty or forty-five feet beyond the place where the man was crossing. Upon these facts we think the case of Pelletreau v. Met. St. Ry. Co. (74 App. Div. 195) is controlling. In both cases the accident occurred upon a street which was much frequented by pedestrians, and the evidence here as in the Pelletfrecm case tended to show that when passing behind one car which had stopped at the crossing, the passenger was struck by a car coming on the other track in the opposite direction and the motorman failed to slacken its speed or to give warning of its approach.

The damages here awarded, however, we think are excessive. The deceased was thirty-five years of age and received a salary of twelve dollars a week as the driver of a milk wagon, and left besides his widow two daughters aged nine and twelve years respectively. Under the circumstances we think that for the pecuniary loss, as shown by the evidence, a verdict of $10,000 would be fully compensatory. Our conclusion, therefore, is that upon the plaintiff giving a stipulation reducing the verdict to that amount the judgment as modified should be affirmed, without costs: and upon failure to give such a stipulation, the judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Patterson and Laughlin, JJ., concurred; Van Brunt, P. J., and McLaughlin, J., dissented.

Dissenting Opinion

McLaughlin, J. (dissenting):

I am unable to agree with a majority of the court to an affirmance of this judgment. I am of the opinion that the plaintiff failed to establish either the negligence of the defendant or the intestate’s freedom from negligence.

The only witness produced by the plaintiff as to how the accident occurred was Conklin, and his testimony will be read in vain to discover any fact which tends to show that the intestate exercised any care whatever, or that he lost his life by any negligent act of the defendant. He testified that he saw the car that struck the deceased and waited until it went by. He said : “ I saw the east-bound car stop *605and the motorman and conductor get off, * * * and I finally walked over and found that a man had been hit. That is about all I know of it. * * * I cannot say that I saw the man leave. I saw a man coming around the end of the west-bound car. He was between the tracks —- between the east and west-bound car, coming south.” The motorman testified that the first he saw of the intestate was that he came from the rear of the west-bound car and stepped directly in front of the east-bound; that the corner of the car •struck him.

There is nothing to show, and to permit the jury to find is to permit them to guess, that the deceased exercised any care whatever for his own safety, and it is obvious that he did not, and if he had done so his life would have been saved. The general rule is that when the circumstances connected with an accident of this kind point as much to the negligence of the deceased as to its absence, or point in neither direction, then a refusal to nonsuit is error. (Wieland v. D. & H. C. Co., 167 N. Y. 19; Fejdowski v. D. & H. C. Co., 168 id. 500; Wiwirowski v. L. S. & M. S. R. Co., 124 id. 420.) Applying this rule to the undisputed facts of this case, it at once became apparent that the trial court erred in refusing to grant the motion for a nonsuit.

Nor do I think there is any evidence of the defendant’s negligence. It is true Conklin testified that in his opinion the car which struck the deceased was at the time going at fifteen miles an hour, but there are no facts given from which a jury could find that his estimate was anything more than a guess. He also gave some testimony to the effect that he did not hear any signals given. The question of signals is of no importance, inasmuch as there is nothing to show that the deceased was over on the track a sufficient distance ahead of the car to enable the motorman to warn him by signals, or to have checked the car and prevented the accident, so that the entire basis for a claim of negligence on the part of the defendant is the statement of Conklin as to the speed of the car. and this, under the circumstances, was insufficient. •

I think the judgment should be reversed and a new trial ordered, • with costs to the appellant to abide the event.

Van Brunt, P. J., concurred.

*606Upon plaintiff stipulating to reduce judgment as entered to the sum of $10,620.80, judgment as so reduced - affirmed, without costs; unless such stipulation he given, judgment reversed, new trial ordered, costs to appellant to abide event.