Brozek v. Railway Co.

not the defendant was chargeable with negligence in not decreasing the speed of the car when the motorman should have seen that the intestate was crossing the track, and, in view of the distance of the car from him when he proceeded to cross and of all the circumstances, whether negligence was imputable to him in doing so. The time when this accident occurred was on a clear day in June about two and half o'clock in the afternoon. The way was clear for the motorman to see the movement of the wagon and for the deceased to see the car, and, if the car was far enough away when the deceased proceeded to cross the track to reasonably enable the motorman to abate the speed of the car so as to avoid the collision, the jury would have been warranted in the conclusion not only that negligence was attributable to the defendant, but for the same reason, unless other circumstances intervened, that the plaintiff's intestate was free from contributory negligence. Timony v. Brooklyn City & N. R. R. Co., 63 N. Y. St. Repr. 311; 145 N. Y. 648.

We have examined the many cases cited by the learned counsel for the defendant, and none of them, in the view taken of the facts upon which they were determined, support his contention that there was no evidence in the present case to support a verdict for the plaintiff. The questions essential to the maintenance of the action were those of fact and should have been submitted to the jury. It follows that the judgment should be reversed and a new trial granted, costs to abide the event.

All concurred.

Judgment reversed and new trial granted, costs to abide the event.

NOTE.-See note to Hall v. Ogden City St. Ry. Co., post.

Fishbach v. Railway Co.

JACOB FISHBACH, Respondent, V. THE STEINWAY RAILWAY COMPANY OF LONG ISLAND CITY, Appellant.

New York Supreme Court, Appellate Division, Second Dept., Dec., 1896. (11 App. Div. 152.)

ELECTRIC STREET RAILWAY-INJURY TO TRAVELER.

In an action for damages for injury sustained by collision with a trolley car, the following facts appeared: Plaintiff was driving eastward upon the west bound track, when, to avoid an approaching car, he turned off and drove upon the other track. Before doing so, according to the testimony of plaintiff and his son, they both looked back (being able to see two or three blocks) for approaching cars, but saw none. They had driven eastward about three blocks, taking from four to eight minutes, without looking back again, when their wagon was struck by a car which had given no warning. Defendant's testimony was that the morning was so dark that objects, including the plaintiff's wagon, could be seen not more than eighteen feet away; that the car was running five or six miles an hour; that the motorman was ringing the bell; that he reversed the power as soon as he saw the wagon, but was unable to avoid collision. It also appeared that plaintiff was a baker, had been up all night, was sleepy, and had before that time been found asleep in his wagon on the track.

Held, that the questions of negligence and contributory negligence were properly submitted to the jury.

That the rule laid down in Winter v. Crosstown St. Ry. Co., 5 Am. Electl. Cas. 515 (opinion by the same justice as in this case), that as matter of law" a failure by the driver of a wagon, on a street car track, to remove his wagon therefrom in time to avoid collision with a car approaching from his rear when, by looking to the rear he might have discovered the car in time to leave the track and avoid the collision, constituted contributory negligence even though the motorman might by the exercise of proper care have avoided the collision," is unsound. That no more stringent rule exists than that the person driving in a car track must exercise reasonable care, and that this is to be determined from a consideration of the obligations resting upon the operator of the car, the burden of use which general traffic imposes upon the street, and the rule that the car has the paramount, but not the exclusive, right of way."

That the operator of a street car is bound to have the car under control, and to so operate the same as to give vehicles a reasonable opportunity

Fishback v. Railway Co.

to get off the track, and to exercise reasonable diligence in making discovery of obstructions in its front.

Cases of this series cited in opinion, appearing in bold faced type: Winter v. Crosstown St. Ry. Co., vol. 5, p. 515; Bernhard v. Rochester Ry. Co., vol. 4, p. 506; Meisch v. Rochester Elec. Ry. Co., vol. 4, p. 520.

APPEAL from judgment entered upon the verdict of a jury at a trial term of the Supreme Court, Queens county, also from order denying motion for new trial upon the

minutes.

Eugene L. Bushe, for the appellant.

Ferdinand E. M. Bullowa, for the respondent.

HATCH, J. The testimony upon the part of the plaintiff tended to establish that, at about five-thirty o'clock on the morning of December 11, 1895, he drove a covered baker's wagon upon defendant's tracks. He was accompanied by his son, who sat upon the seat in the wagon by his side. The wagon was first driven in the west bound track, but seeing a car approaching upon that track in his front he turned off and drove upon the east bound track to allow the car to pass. Plaintiff and his son both testify that when they came upon the east bound track they could see for a distance of two or three blocks; that each looked to the rear for the purpose of seeing whether a car was approaching from that direction, and, seeing none, continued to drive west upon the track for a distance of about three blocks, occupying a period of from four to eight minutes. Neither the father nor son looked to the rear after making their first observation. Defendant's tracks at this point had been recently constructed, and plaintiff's evidence tended to establish that the road by the side of the track was out of repair, and that driving therein would be attended with difficulty, if it could be done at all. There is some proof in this connection that the condition, to some extent, was due to the construction of defendant's

Fishbach v. Railway Co.

road. It is, however, a matter of inference arising from the evidence, rather than a fact established by direct proof. Plaintiff claimed, and his evidence tends to support the claim, that while in this position the defendant, without any warning, ran its trolley car into the rear end of his wagon with force sufficient to shatter the same, injuring the plaintiff's horse so that he was thereafter required to kill it, and inflicting severe injuries to his person.

The testimony upon the part of the defendant tended to establish that the morning was very dark; that objects could not be seen for a greater distance than eighteen feet; that the car was running at the rate of five or six miles an hour, and the motorman was sounding the bell; that he did not discover plaintiff's wagon upon the track until his car was within fifteen to eighteen feet of it; that he then reversed the motive power of the car, but was unable to prevent a slight contact with the wagon, inflicting little, if any, damage thereto. Further proof tended to establish that plaintiff was a baker, had been up all night, was in a sleepy condition, and had, prior to that time, been found asleep in his wagon upon the tracks. We are of opinion that upon this proof the court was correct in holding that the question of defendant's negligence, and of plaintiff's contributory negligence, became questions of fact for determination by the jury.

We should not have deemed it necessary to give expres. sion to our views in a written opinion in this case, were it not for the fact that in one opinion at least, now relied upon to reverse this judgment, expression of what facts constituted contributory negligence as matter of law in a somewhat similar case does not meet with approval in our present view. In Winter v. Crosstown Street R. Co., 8 Misc. Rep. 362, the court held as matter of law that a failure by the driver of a wagon, on a street car track, to remove his wagon therefrom in time to avoid collision with a car approaching from his rear when, by looking to

Fishback v. Railway Co.

his rear, he might have discovered the car in time to leave the track, and avoid the collision, constituted contributory negligence even though the motorman might by the exercise of proper care have avoided the collision. This case is easily distinguishable from the present in the fact that the accident happened in broad daylight; the driver had made no attempt to observe the approach of the car, and had been in the track for nearly half an hour, and concededly the bell, announcing the approach, was sounded within the driver's hearing. In the present case, if plaintiff is to be believed, he made observation for the approaching car, was on the track but a short distance, and had driven thereon for a short distance, and no car was visible when he looked for a distance of two or three blocks, and he testified that he heard no bell ring upon the approaching car. I do not wish, however, to dispose of the present question upon this distinction. The opinion in the Winter case was written by the present writer. Subsequent reflection, however, has led my mind to the conclusion that its doctrine in this respect is unsound, and that its view is not in harmony with the current of contemporary authority and later decisions. This decision was based upon Adolph v. Cen. Park, etc. R. R. Co., 76 N. Y. 538. There are some expressions in the opinion of Judge FOLGER which are susceptible of a construction which would support the rule laid down in the Winter case. But subsequent interpretation of that decision by the courts has left the case to stand upon no more stringent rule than that the person driving in a car track must exercise reasonable care, and that this is to be determined from a consideration of the obligations resting upon the operator of the car, the burden of use which general traffic imposes upon the street, and the rule that the car has the paramount, but not the exclusive, right of way. McClain v. Brooklyn City R. R. Co., 116 N. Y. 459; Bernhard v. Rochester Ry. Co., 68 Hun, 371.