McLAUGHLIN, J.:

The plaintiff, as the administratrix of Virgil D. Thompson, deceased, brought this action to recover the damages alleged to have been sustained by his widow and next of kin on account of his death, upon the ground that the same was caused solely by the negligence of the defendant. She had a verdict, and from the judgment entered thereon and from an order denying a motion for a new trial defendant has appealed.

At the trial it appeared, and the facts were uncontradicted, that the intestate about four o'clock in the afternoon on the 11th day of July, 1901, attempted to cross diagonally from the southwest to the easterly side of Broadway at its intersection with Eighth street, and in doing so was struck by one of the defendant's north-bound cars and received injuries from which he died two days later. Only two witnesses, Coffin and Courtney, were produced who testified as to how the accident occurred. From their testimony, which is uncontradicted, it appears that the intestate obtained a transfer from a transfer agent who was stationed at the southwest corner of Broadway and Eighth street, and then started to cross Broadway in a diagonal direction. The defendant at this point has two tracks on Broadway — the one on the westerly side being used for cars going in a southerly, and the one on the easterly side for cars going in a northerly direction — the space between the two tracks being four and a half feet. When the intestate reached this space he stopped and looked in a southerly direction, and there was then approaching on the north-bound tracks a car eight or ten feet from him. The car was approaching rapidly, but at this point it "slowed up" and as it "slowed up" the intestate proceeded. The speed of the car was again increased and just as the intestate was about to step upon the track he was struck by the side or the front end of the car, knocked down and received the injuries which resulted in his death. It did not appear that he paid any attention to the car after it "slowed up," but proceeded to cross, probably assuming that because it had slowed up it would come to a stop and he could cross the street in safety. This being the condition of the evidence at the close of the plaintiff's case, and at the close of the trial, we think the defendant's motions to dismiss the complaint should have been granted, and the exceptions taken to the denial of such motions necessitate a reversal of the judgment.

The plaintiff, of course, was not entitled to recover unless she produced evidence sufficient to sustain a finding of the jury that the injuries to her intestate were due to the negligence of the defendant and that his negligence did not contribute thereto. This she failed to do. ( Lynch v. Third Ave. R.R. Co., 88 App. Div. 604; Little v. Third Ave. R.R. Co., 83 id. 330; Jackson v. Union Ry. Co. 77 id. 161; Johnson v. Third Ave. R.R. Co., 69 id. 247.)

Whether or not a signal of the approach of the car was given is of no importance because the evidence is conclusive upon the point that the intestate saw the car. He "looked at the car" and must have known that it was approaching, because it was then only eight or ten feet from him. Nor is there any force in the suggestion that he had a right to assume, because the car had commenced to slow up, that it would be so controlled that he could cross the street in safety. It was the duty of the motorman as the car approached the crossing to have it under reasonable control ( Hoyt v. Metropolitan St. Ry. Co., 73 App. Div. 249), but this did not give the intestate the right to assume that it would come to a stop, or that its speed would be so controlled as to give him time to pass over the tracks without being injured. He had no more right to indulge in this assumption, under the facts set out in the record, than the motorman had to indulge in the assumption that the intestate would keep out of the way of the car. The intestate, of course, was as much obligated to look out for his own safety as the defendant was to prevent his being injured. The obligation resting upon each was mutual in this respect. Both had an equal right to the use of the street at this point; and while it was the duty of the defendant to move its car with care, to the end that the intestate would not be injured, he was also required to exercise the same care to prevent his being injured. We are of the opinion that the record failed to establish the negligence of the defendant, or the intestate's freedom from negligence.

We have examined the other questions raised, but do not deem them of sufficient importance to be here considered.

It follows that the judgment and order appealed from must be reversed and a new trial ordered, with costs to appellant to abide the event.

VAN BRUNT, P.J., INGRAHAM and HATCH, JJ., concurred; O'BRIEN, J., dissented.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.