
    KRINTZMAN v. INTERURBAN ST. RY. CO.
    (Supreme Court, Appellate Term.
    June 22, 1903.)
    1. Imputed Negligence—Fellow Servant.
    The negligence of the driver of a wagon is chargeable to a fellow servant riding on the wagon with him.
    2. Street Railways—Crossing Accident—Contributory Negligence.
    Where one driving a wagon on approaching a street railway track saw a car 20 feet distant, approaching rapidly, but drove on the track, he was guilty of contributory negligence.
    3. Same—Contributory Negligence.
    Where one sitting on the tailboard of a wagon, which was going slowly toward a railroad track, saw a car approaching 20 feet away, at a rapid rate of speed, but continued to sit where he was until he was thrown off by a collision, he was guilty of contributory negligence. •.
    ¶ 1. See Negligence, vol. 37, Cent. Dig. § 147.
    Appeal from Municipal Court, Borough of Manhattan, Fourth District.
    Action by Samuel Krintzman against the Interurban Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.
    Argued before FREEDMAN, P. J„ and GILDERSLEEVE and MacLEAN, JJ.
    Henry A. Robinson, for appellant.
    Michael B. Feeny, for respondent.
   MacLEAN, J.

Plaintiff, in the employ of the Nassau News Company, on the 17th day of November, 1902, about 4:50 o’clock in the morning, was injured as a result of a collision between defendant’s street car and the wagon of the news company, which was driven by a fellow workman westerly through Warren street, with the plaintiff sitting on the tailboard of the wagon. On reaching West Broadway a north-bound car struck the front wheel of the wagon, turned it over, throwing off the plaintiff, and causing the injury. The -driver of the wagon testified:

“I was driving through Warren street. The team of horses just crossed the track, and an American News Company wagon ahead of me. I followed that wagon. I got my horses past and half of the front wheel, and the car struck me, and turned the wagon clean over. There was no space at all hardly between the heads of the horses and the other wagon. I was right on top of him. I followed directly behind the other wagon. What did I do before I got on the track? I drove right straight on. The car came along—■ came so fast—and turned it right over. I didn’t think the car was coming so fast. I seen the car about twenty-five feet from the track. It was about forty feet away when I first saw it, I imagine. I was about twenty-five feet away from the track, and I see this American News Company wagon pass.. I didn’t think the car was coming fast, and I followed him right up.”

There were no lights on the wagon, as testified ,by the plaintiff. The negligence of Ms comrade, the driver, who was negligent, was chargeable to the plaintiff, who, moreover, says that sitting on the tailboard of the wagon, which was going slowly, he saw the coming car 20 feet away, and continued sitting there until he was thrown off by the collision. The judgment should be reversed, and a new trial ordered, with costs to abide the event.

Judgment reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.  