Lead Opinion

Patterson, J. :

At about midnight on January Y, 1899, the plaintiff’s testator was killed by being struck and run over by a car belonging to the defendant and in charge of its servants. The car was proceeding southerly on the westerly track of the defendant’s road on Central , Park West. - The decedent and a companion were at the southwest corner of Central Park West and Sixty-ninth street, intending to. take a north-bound car on the defendant’s road. Such a car was seen at about Sixty-eighth street, and a south-bound car was also seen at about the southerly side of Seventy-first street. The decedent and his companion left the southwest corner of Sixty-ninth street, signaling to those in charge of -the north-bound car to Stop. The car did stop between the north and south lines of Sixty-ninth street. The plaintiff and bis companion walked quite fast toward the north-bound car, diagonally northeastward from the street corner from which they started. The conductor cried to them to come on and to hurry up. The decedent’s companion reached the northbound car in safety and was about four feet in advance. He turned and saw the decedent right behind him in the center of the south track, with the south-bound car rapidly approaching. He called to *203the decedent to look out for the car, and he testified that the decedent attempted to avoid it by a backward movement, but was struck before he could leave the track and was killed.

There was evidence on the part of the plaintiff-to show that the south-bound car was proceeding at a very rapid rate of speed, as much as about the rate of twenty or twenty-five miles an hour; also that no gong was sounded and no warning given. There is evidence from which the jury could well infer that the car was being l-un at such a rate of speed as not to be under control at street crossings or the places at which pedestrians are expected to cross the street. The theory of the defendant is that the car was proceeding only at the rate of some eight miles an hour or less; that by reasonable vigilance or prudence the decedent could have seen the impending danger from the approaching car and could have avoided it. However, under the evidence as it stands, the question of contributory negligence was one for the jury. They might well believe from the evidence that the decedent and his companion might reasonably have expected to, reach the northbound car in safety, and that the motorman of the south-bound car. would have his car under control so that they might cross without danger. Upon the whole evidence we see no reason for charging the decedent with contributory negligence as matter of law.

We have examined the exceptions in the case, but we do not think they are of sufficient importance to require a reversal of the judgment.

The jury rendered a verdict for the plaintiff in the sum of $10,000. We can find no basis in the evidence authorizing a judgment in so large a sum. The decedent was seventy-three years of age. He was a successful business man, apparently in good financial circumstances. He left a widow and adult children. No information is given us as to his income or as to what contribution he made to his family, or what they might reasonably expect from him in the future. There is a singular lack of data in this case upon which to -base pecuniary loss to the next of 'kin. None of the next of kin of the decedent was receiving pecuniary aid from him, but only the wife. The damages are excessive and should be reduced to $5,000.

If the plaintiff will stipulate so to reduce the judgment as *204entered to the sum-of $6,586.43, the judgment as modified by such reduction and the order appealed from will be affirmed, without costs. If, however, the stipulation is not’given, the judgment and order must be reversed and a new trial ordered, with costs to appellant to abide the event.

Hatch and Laughlin, JJ., concurred.

Dissenting Opinion

McLaughlin, J. (dissenting):

I am unable to concur in the prevailing opinion. The testimony is uncontradicted to the effect that when the intestate reached the southwest corner of Sixty-ninth street and, started to diagonally cross the street on which defendant’s cars were run, he saw the- car which subsequently struck and killed him approaching from. Seventy-first street. The car was lighted and was plainly visible, and had he exercised the care the law requires the accident would have been avoided. It does not appear that after he left the corner of Sixty-ninth street he looked to see where the car was, or that he took any precautions whatever for liis own safety until it was toó late. Upon such facts, it is difficult to see how the plaintiff met the burden which rested upon him of showing that the intestate was free from contributory negligence in not seeing the car before he stepped in front of it; or, if he was free from contributory negligence, how the d efen dan t’s. motor man was guilty of negligence in not seeing tire intestate. If the intestate was unable to see a fully lighted car. which he knew was approaching, how was it possible for the motorman to see a person, whose presence was unknown, attempting to cross the street ? The fact that no gong was sounded or warning given of the approach of the car is of no importance, because the intestate saw the car and knew it was approaching, nor is there force in the suggestion- that the intestate had the right to assume that the car would be so controlled that lie could cross the street in safety. He had no more right to indulge in this assumption than the motorman of the car had that the intestate would so control his own movements with-reference to the car that he would not be injured. - The conclusion reached by a majority of the court is in conflict with the following authorities: Weiss v. Metropolitan St. Ry. Co. (33 App. Div. 221; S. C. affd., 165 N. Y. 665); Stern v. Metropolitan St. Ry. Co. (47 App. Div. 625); Biederman v. Dry Dock, East Broad*205way & Battery R. R. Co. (54 id. 291); Madigan v. Third Avenue R. R. Co. (68 id. 123); Johnson v. Third Avenue R. R. Co. (69 id. 247), and if we are to follow those decisions, then the judgment appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.

Ingraham, J., concurred.

On plaintiff stipulating to reduce the judgment as entered to the sum of $6,586.73, judgment as so modified and order affirmed, without costs. If such stipulation be not given, judgment and order reversed and new trial ordered, with costs to appellant to abide event.