
    H. KOEHLER & CO. v. BROOKLYN HEIGHTS RY. CO.
    (Supreme Court, Appellate Term.
    July 7, 1908.)
    Street Railroads—Collision—Negligence—Contributory Negligence. ■ In an action against a street railway company for the death of a horse in a collision with a car, evidence held to warrant a finding that the company was negligent, and that the driver of the horse was free from contributory negligence, authorizing a recovery.
    Appeal from Municipal Court, Bofiough of Manhattan, Fourth District.
    Action by H. Koehler & Co. against the Brodklyn Heights Railway Company. From a judgment of the Municipal. Court in favor of plaintiff, defendant appeals.
    Affirmed.
    Argued before GILDERSLEFVE, P. J., and MacEEAN and SEA-BURY, JJ.
    George D. Yeomans, for appellant.
    Pratt & Koehler, for respondent.
   SEABURY, J.

This action is brought to recover damages for the death of a horse alleged to have been ki'led through the negligence of the defendant. The appellant claims that the plaintiff failed to establish that its driver was free from contributory negligence and to sustain the burden of proof showing that the defendant was negligent. The plaintiff’s agent was driving two horses attached to a heavily loaded wagon. While goipg through Huron street, and attempting to cross the railway tracks on Manhattan avenue, his truck was -struck by the defendant’s car. The driver testified that he looked and saw no car approaching from the north, but that, while he was on the north-bound track, he saw a south-bound car 50 or 75 feet away from him. He testified that to avoid the accident he turned his horses to the left; but the car, which was going rapidly, struck his truck. There was testimony that the motorman made no effort to sbcken the speed of his car and Sounded no gong. The plaintiff was corroborated by two disinterested witnesses, while the defendant called no witnesses and offered no proof. I think the evidence sufficient to sustain the judgment rendered.

Judgment affirmed, with costs. All concur.  