
    Eliza Altenkirch, Respondent, v. National Biscuit Company, Appellant.
    Second Department,
    June 18, 1908.
    Negligence — collision of truck with standing vehicle — care required on slippery pavement — rule of the road.
    Plaintiff while sitting in an open buggy before a store was struck and thrown therefrom by the defendant’s truck coming from behind. ' The buggy was visible for a long distance from either direction, the street was fifty or sixty feet wide between the curbs and there was abundant room for the defendant’s truck to pass without colliding with the buggy; but the driver following a preceding wagon turned his horses in such a manner as to cause the rear wheel of the truck to strike the rear wheel of the buggy.
    
      Held, that the evidence established both the negligence of the truck driver and freedom from contributory negligence;
    That although the pavement was wet and slippery so that a. wagon was likely to skid, the defendant’s driver assumed the risk in attempting to pass tile plaintiff’s buggy;
    That the rule that one who attempts to pass another in a highway going in the same direction has the right to do so in such manner as may be convenient under the circumstances and, if damage result to the person passed, the former must answer for it, unless the latter by his own recklessness of carelessness brought the disaster upon himself, is applicable to one who attempts to pass a standing vehicle headed in the same direction. -
    Appeal by- the defendant, the National Biscuit Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 1st day of November, 1907, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 30th day of October, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      Frederick B. Campbell [Henry S. Curtis with him on the brief], for the appellant.
    
      George V. S. Williams, for the respondent.
   Rich, J.:

On the morning of August 4, 1906, the plaintiff, accompanied by her thirteen-year-old son, drove in a light, one-seated, one-horse, open buggy, alongside the curb in front of a store where she intended making some purchases. There were no other vehicles in that vicinity at the time, and there was nothing to prevent the plaintiff’s horse and buggy being distinctly seen for a long distance from either direction. While the plaintiff was giving an order two heavily loaded trucks owned by the defendant and driven by its employees approached the place where plaintiff’s carriage was standing from the rear. The first one passed safely, the second collided with plaintiff’s buggy, throwing her to the ground and causing the injuries complained of. The jury rendered a verdict for plaintiff for $6,000.

The driver of the rear truck, in describing the manner in which the accident occurred, testified: “My leader, Mr. Horner, was ahead of me, and I, as I say, my horses’ heads were about three feet behind him, and he swung a little by for to clear this lady’s carriage,- I didn’t realize what he had swung out for until my horses’ heads were right pressed up on the rear wheels of this carriage ; then I thought an accident was going to happen; then I swung my horses as soon as I possibly could; in swinging so the tail end of my off wheel struck her near wheel.” The driver of the first truck testified that he made no turn to pass plaintiff; that there was plenty of room for him to pass between the car tracks and her buggy without colliding with it. The street was shown to be from fifty to sixty feet in width between cuihs; the plaintiff’s horse was standing still and did not move until the collision; there was abundant room for defendant’s truck, to pass without colliding with her wagon, and the evidence establishes both negligence on the part of the driver of the truck and plaintiff’s freedom from negligence contributing to her injury.

It is'contended that the pavement was wet and that the truck skidded or slewed as its driver pulled out to pass, bringing it in contact with plaintiff’s buggy, from which it is argued that the accident was inevitable and unavoidable. This contention cannot be sustained. If the pavement was wet, that .fact was known to the driver, and he had the whole width of the street for use in passing. Whatever element of danger the wet pavement presented, its risk, was assumed by the driver when he attempted to pass. The wet condition of the pavement was not a condition causing or resulting in an inevitable or unavoidable accident, but a condition demanding of the driver greater care and vigilance in the attempt he was about to make. It was his duty to exercise care and foresight to prevent reaching a point from which he was unable to extricate himself; and, omitting this duty, the greatest vigilance and care on his part when the danger arises will not avail him. (Austin v. New Jersey Steamboat Co., 43 N. Y. 75.) The accident was not unavoidable or inevitable, but could have been avoided by the use of a slight degree of care and foresight by defendant’s driver by crossing to the center or other side of the street before reaching plaintiff, or when he was too close to her wagon to do so safely, by stopping his horses, which were walking, acquainting her with the conditions and suggesting that she drive ahead a sufficient distance to permit-him to pass with safety.

Another rule of law applicable to this case is that he who attempts to pass: another in a highway, going in the same direction, lias the right to do so in ;such manner as may be most convenient under the circumstances, and if damage result to the person passed the former must answer for it unless the latter by his own' recklessness or carelessness brought the disaster upon himself (Elliott Roads & Streets [2d ed.] § 833, and cases cited), and this rule is as applicable to one attempting to pass a standing vehicle, headed in the same direction, which lie .approaches from the rear, as it is to a- vehicle in motion traveling in the same direction. In pulling, his team further out; into the street and attempting to pass plaintiff at a time when' his nearness to. the wagon in which plaintiff, was sitting caused him to think that an accident was going to happen, it was at his peril; he assumed all apparent risk of passing safely.

The judgment and order must be affirmed, with costs.

Present — Woodward, Jenks, .Gatnor, Rich and'Miller, JJ.

Judgment and order unanimously affirmed, with costs.  