Hirschberg, J.:
The appeals are presented in two records, but" the questions involved may conveniently be considered in one opinion. There is an appeal from a judgment which the plaintiff has recovered for the negligent killing of her intestate, which appeal embraces incidentally an order denying the defendant’s motion for a new trial made upon the minutes, and there is a separate appeal from an order subsequently made at Special Term by the justice who presided at the trial denying the defendant’s motion for a new trial on the ground of alleged newly-discovered evidence. Only one exception was taken at the trial, viz., to a refusal to dismiss the complaint at the close of all the evidence, so that upon the main case the only question for review is whether the facts required a submission of the controversy to the jury.
The accident occurred on the stretch of track coming from Jamaica to East New York through Fulton street, where the railroad passes Hoffman boulevard. The tracks run practically east and west at this point, but Hoffman boulevard approaches Fulton street from the southeast at an angle which would enable a driver looking ahead to nearly face a car coming from Jamaica. The boulevard does not cross the tracks, but another street known as Rose avenue commences about thirty feet north of the tracks on the opposite side, making practically a continuous street from either direction. The deceased was driving upon Hoffman boulevard, in [88]*88company with a woman, on a clear, bright day, at half-past three in the afternoon of August 16, 1900, and had succeeded in crossing the east-bound track with all but the middle or hind part of his wagon when he was. struck and killed by one of the defendant’s cars coming from Jamaica. The cause of. action was clearly established. When the deceased was within twenty feet of the. track the car was between two hundred and two hundred and fifty feet dis- ■' tant, and was from seventy to seventy-five feet distant when the horse was on the track. It was at this time that the motorman first attempted to control the car, but its speed was too great to enable him to avoid the collision. Most of the. witnesses testified that the.car was going at the rate of twenty miles an hour, while the horse was merely jogging along. Even the motorman testified: “I'hadi on full power, and my car was going as fast as it could go. It was not going down hill much, just a trifle, that is all. * * * I never saw a trolley car go faster in my life than this trolley car of mine went that day. I never traveled faster.” In view of the-excessive speed and the consequent distance which the car must, have been from the crossing at the time when the motorman in the-exercise of ordinary care should have seen the deceased as he was-jogging across in plain sight, the jury might very well conclude: that a prudent driver would assume that some timely, attempt would be made at slackening the speed of the car, and that it. was, therefore, safe to cross at the time the attempt was made.. The cqse as adopted by the jury in its salient feature is that of a. car approaching a place where it is customary for people to drive* across the tracks, but approaching at the rate of twenty miles an hour, with a driver traveling at an ordinary gait, who has some* right to assume that the speed will be reduced and the car placed, under control before it reaches his street, but who is killed, because no attempt is made to slow down until a collision is inevitable. The authorities are numerous to the effect that such a case* is one for the determination of a jury. As Mr. Justice Woodward-said in Sesselmann v. Metropolitan Street R. Co. (76 App. Div. 336, 338): “ It is not enough that the speed shall be reduced, if that reduction of speed does not operate to give the motorman that, control of his car which is necessary to the equal rights of' pedestrians and others at street intersections, and it is always a. [89]*89question for the jury whether the car is in such control.” There is some evidence, it is true, that the deceased drove upon the tracks without apparently looking either to the right or left. Aside from the nature of the locality which would indicate that it was unnecessary to turn to the left in order to see the car in question, it has often been held that the failure to prove that a driver or pedestrian did look is immaterial where the street car is at such a distance as to warrant the assumption of safety. (Brozek v. Steinway Railway Co., 10 App. Div. 360 ; Kitay v. Brooklyn, Q. C. & S. R. R. Co., 23 id. 228; Read v. Brooklyn Heights R. R. Co., 32 id. 503; Dunican v. Union Railway Co., 39 id. 497.) To the same effect in principle are the eases of Lawson v. Metropolitan, Street R. Co. (40 App. Div. 307; affd., 166 N. Y. 589); Mowbray v. Brooklyn Heights R. R. Co. (59 App. Div. 239); Bruss v. Metropolitan Street R. Co. (66 id. 554); Andres v. Brooklyn Heights R. R. Co. (84 id. 596), and many others which might be cited. Where a person would not be chargeable with contributory negligence as matter of law if he had seen the car before attempting to cross in front of it, he cannot be so charged for a failure to see the car because he did not look.
The more serious question in the case arises on the appeal from the order denying the motion for a new trial on alleged newly-discovered evidence. On the argument I was inclined to the opinion that this motion should have been granted, but a careful study of the record has convinced me that the learned justice, at Special Term was right in both points by which he was apparently influenced, viz., that the existence of the alleged new witness was known to the defendant before the trial, and that her evidence ’ is not of sufficient value to warrant the belief that it could influence the result on a new trial. This witness is the woman who was in company with the deceased at the time of the occurrence, who then refused to give her name or address, but who now makes affidavit that she was driving the horse on the occasion in question; that she had no control of him; that the deceased knew she could not drive; that she and the deceased were talking and laughing, neither of them looking or thinking about the street car tracks, and that just before the car struck the wagon the deceased “ seized the reins,” but too late. Nothing which occurred upon the trial and nothing [90]*90which is presented in the motion papers tends in the slightest degree to indicate that the accident occurred because of incompetent or unskillful driving. Assuming that the negligence of the woman, if she was driving, would be attributable in law to the deceased, there is no suggestion that she was negligent in any matter which contributed to the accident. The accident did not occur because the. driver had lost control of the horse. All the witnesses oh either side unite in the assertion that the horse was driven at a steady gait, in the middle of the street and upon the tracks without, deviation until the wagon was struck by the oncoming car, and under circumstances which render it of little consequence whether the car ran into a wagon driven by a man or by a woman. In óthér words, there is no pretense that the accident was occasioned in whole or in part by improper driving or by a lack of control of the horse on the. part of the driver.
The affidavit is at variance with all the evidence in the case.
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Hirschberg, J.:
The appeals are presented in two records, but" the questions involved may conveniently be considered in one opinion. There is an appeal from a judgment which the plaintiff has recovered for the negligent killing of her intestate, which appeal embraces incidentally an order denying the defendant’s motion for a new trial made upon the minutes, and there is a separate appeal from an order subsequently made at Special Term by the justice who presided at the trial denying the defendant’s motion for a new trial on the ground of alleged newly-discovered evidence. Only one exception was taken at the trial, viz., to a refusal to dismiss the complaint at the close of all the evidence, so that upon the main case the only question for review is whether the facts required a submission of the controversy to the jury.
The accident occurred on the stretch of track coming from Jamaica to East New York through Fulton street, where the railroad passes Hoffman boulevard. The tracks run practically east and west at this point, but Hoffman boulevard approaches Fulton street from the southeast at an angle which would enable a driver looking ahead to nearly face a car coming from Jamaica. The boulevard does not cross the tracks, but another street known as Rose avenue commences about thirty feet north of the tracks on the opposite side, making practically a continuous street from either direction. The deceased was driving upon Hoffman boulevard, in [88]*88company with a woman, on a clear, bright day, at half-past three in the afternoon of August 16, 1900, and had succeeded in crossing the east-bound track with all but the middle or hind part of his wagon when he was. struck and killed by one of the defendant’s cars coming from Jamaica. The cause of. action was clearly established. When the deceased was within twenty feet of the. track the car was between two hundred and two hundred and fifty feet dis- ■' tant, and was from seventy to seventy-five feet distant when the horse was on the track. It was at this time that the motorman first attempted to control the car, but its speed was too great to enable him to avoid the collision. Most of the. witnesses testified that the.car was going at the rate of twenty miles an hour, while the horse was merely jogging along. Even the motorman testified: “I'hadi on full power, and my car was going as fast as it could go. It was not going down hill much, just a trifle, that is all. * * * I never saw a trolley car go faster in my life than this trolley car of mine went that day. I never traveled faster.” In view of the-excessive speed and the consequent distance which the car must, have been from the crossing at the time when the motorman in the-exercise of ordinary care should have seen the deceased as he was-jogging across in plain sight, the jury might very well conclude: that a prudent driver would assume that some timely, attempt would be made at slackening the speed of the car, and that it. was, therefore, safe to cross at the time the attempt was made.. The cqse as adopted by the jury in its salient feature is that of a. car approaching a place where it is customary for people to drive* across the tracks, but approaching at the rate of twenty miles an hour, with a driver traveling at an ordinary gait, who has some* right to assume that the speed will be reduced and the car placed, under control before it reaches his street, but who is killed, because no attempt is made to slow down until a collision is inevitable. The authorities are numerous to the effect that such a case* is one for the determination of a jury. As Mr. Justice Woodward-said in Sesselmann v. Metropolitan Street R. Co. (76 App. Div. 336, 338): “ It is not enough that the speed shall be reduced, if that reduction of speed does not operate to give the motorman that, control of his car which is necessary to the equal rights of' pedestrians and others at street intersections, and it is always a. [89]*89question for the jury whether the car is in such control.” There is some evidence, it is true, that the deceased drove upon the tracks without apparently looking either to the right or left. Aside from the nature of the locality which would indicate that it was unnecessary to turn to the left in order to see the car in question, it has often been held that the failure to prove that a driver or pedestrian did look is immaterial where the street car is at such a distance as to warrant the assumption of safety. (Brozek v. Steinway Railway Co., 10 App. Div. 360 ; Kitay v. Brooklyn, Q. C. & S. R. R. Co., 23 id. 228; Read v. Brooklyn Heights R. R. Co., 32 id. 503; Dunican v. Union Railway Co., 39 id. 497.) To the same effect in principle are the eases of Lawson v. Metropolitan, Street R. Co. (40 App. Div. 307; affd., 166 N. Y. 589); Mowbray v. Brooklyn Heights R. R. Co. (59 App. Div. 239); Bruss v. Metropolitan Street R. Co. (66 id. 554); Andres v. Brooklyn Heights R. R. Co. (84 id. 596), and many others which might be cited. Where a person would not be chargeable with contributory negligence as matter of law if he had seen the car before attempting to cross in front of it, he cannot be so charged for a failure to see the car because he did not look.
The more serious question in the case arises on the appeal from the order denying the motion for a new trial on alleged newly-discovered evidence. On the argument I was inclined to the opinion that this motion should have been granted, but a careful study of the record has convinced me that the learned justice, at Special Term was right in both points by which he was apparently influenced, viz., that the existence of the alleged new witness was known to the defendant before the trial, and that her evidence ’ is not of sufficient value to warrant the belief that it could influence the result on a new trial. This witness is the woman who was in company with the deceased at the time of the occurrence, who then refused to give her name or address, but who now makes affidavit that she was driving the horse on the occasion in question; that she had no control of him; that the deceased knew she could not drive; that she and the deceased were talking and laughing, neither of them looking or thinking about the street car tracks, and that just before the car struck the wagon the deceased “ seized the reins,” but too late. Nothing which occurred upon the trial and nothing [90]*90which is presented in the motion papers tends in the slightest degree to indicate that the accident occurred because of incompetent or unskillful driving. Assuming that the negligence of the woman, if she was driving, would be attributable in law to the deceased, there is no suggestion that she was negligent in any matter which contributed to the accident. The accident did not occur because the. driver had lost control of the horse. All the witnesses oh either side unite in the assertion that the horse was driven at a steady gait, in the middle of the street and upon the tracks without, deviation until the wagon was struck by the oncoming car, and under circumstances which render it of little consequence whether the car ran into a wagon driven by a man or by a woman. In óthér words, there is no pretense that the accident was occasioned in whole or in part by improper driving or by a lack of control of the horse on the. part of the driver.
The affidavit is at variance with all the evidence in the case. The' accident not only occurred, as I have said, in the afternoon of a bright, clear day, but it was witnessed by a large number of people, both on the car and in the street, who had ample opportunity • to observe everything connected with it, and it seems incredible that if a woman had driven the deceased to his tragic' death in their presence, the fact would have escaped the attention of every one of tliem. This is wholly apart from the question of unskillful handling of the reins, for without any manifestation of that character it would seem unlikely that the somewhat unusual circumstance of the woman driving would not have .been notéd by some one of the many who saw the wagon, its occupants and the disaster. Fifteen eyewitnesses of the occurrence testified upon the trial, and all who testified on the subject asserted that the deceased was driving. Even the motorman, who had probably the best opportunity to observe, and who surely would, have called attention to the fact that the woman was driving, especially if anything in the driving contributed to the accident, testified : “ I noticed a man coming down in a buggy and driving kind of rapidly, and I sounded my bell and immediately applied the brakes, expecting this mcm to either turn to the right or to the left, and I see the man paid no attention. * * *' I did not see this man look to the fight and left or make any effort to turn at all. He drove straight across.” .
[91]*91The defendant knew the name and address of the woman long •before the trial, but answered the case as ready and elected to go to trial without her evidence. She does not assert that she will testify upon a new trial, nor does the defendant assert that it desires or intends to call her as a witness. The evidence, such as it is, not being “ newly discovered ” in a legal sense, there being no suggestion that it would be used on a new trial, it being wholly in conflict with all the established facts so that it is reasonably certain that it would not reverse the result, and it having no important bearing upon the question of liability if true, the motion was properly denied under the well-settled principles of law applicable to the subject.
The verdict was large, but not excessive. The deceased was thirty-eight years of age, and his income was the sole support of his wife, the plaintiff, and two children aged eight and twelve years respectively. He held a life position as battalion chief in the fire ■department at an annual salary of $3,300. While the verdict is a large one, I can only repeat the language of Judge Cullen in Thomas v. Union Railway Co. (18 App. Div. 185, 189), which is even more applicable to-day than when it was written, viz.: “ The recovery in this case has been very large, much larger than we should have given him for the injury, but, compared with other recoveries which we have allowed to pass, we cannot say that it is so great as to justify our interference.”
The judgment and orders should be affirmed.
Bartlett and Jerks, Jj., concurred; Goodrich, P. J., and Woodward, J., read for reversal.