
    Sigmund Tarler, Respondent, v. The Metropolitan Street Railway Co., Appellant.
    (Supreme Court, Appellate Term,
    November, 1897.)
    Negligence — Collision in a street — Duty of driver of street car.
    Proof that, after the carriage of a physician, who was calling professionally .at a house, had been twice driven away by its eoacjhman at the request of drivers of street cars because the space between the car track and the curb was so narrow, the physician came out of -the house -and saw'a car approaching from the rear, but at that time some distance away; that after he had.taken his seat in his carriage, and before he had actually started it, there was a slight movement of the carriage causing it to collide with the street car at a point about at the middle of the car, does not show that the physician was negligent; and the driver of the car must be deemed to have violated his duty in driving upon a carriage, thus situated, without giving any warning of his approach.
    Appeal from judgment rendered by the justice- of the Fifth Judicial District Court in favor of the plaintiff.
    Action for negligence.
    Daniel W. Patterson and Theodore H. Lord, for appellant.
    Nicholas Aleinikoff, for respondent.
   Bischoff, J.

Plaintiff, a physician, left his carriage in charge of his servant and drawn up to the sidewalk at a point where the defendant’s street car tracks ran, parallel to the curb, but so close to it as to leave a- very slight space, if any, between the vehicle, as so placed, and any car proceeding along the track.

The servant was required to wait some fifteen minutes for the ■plaintiff’s conclusion of a professional visit, and while thus waiting he had been called upon by the drivers of two of the defendant’s cars to move the carriage from its position in order that the cars might pass. On these occasions he drove around the corner of the adjacent street and then returned, drawing up the vehicle against the curb, as- noted.

When the plaintiff returned to the carriage he observed the street car, which afterward caused the damage, approaching from the rear and then some distance away; having entered the vehicle and seated himself beside his servant, he took the reins and prepared to start, when a collision, which acceptable evidence shows to have been very violent, was brought about by the continued progress of this car.

This appeal proceeds solely upon the ground that the plaintiff’s negligence contributed to the injury, the contention being based upon the evidence of one of the plaintiff’s witnesses that the carriage was struck by the “ middle of the car,” from which fact it is agreed that some movement of the carriage must have caused the contact, without which movement no collision could have occurred, since the car’s progress was limited to a straight line at this point, ttiaintained with safety for half of its length.

- Granting the fact that had. the plaintiff’s vehicle remained stationary the car might have passed it, and still the recovery was authorized. ■. ■

It is-Apparent that the space intervening the carriage and the. car upon this track, when the carriage was drawn close to the curb, was very small, this being inferable from the refusal of the drivers of the preceding cars to attempt the passage under the same circumstances,' and also from the" fact that a slight movement of the.carriage, before it had actually started, sufficed'to precipitate, the present accident;

It is not merely the contributory act, but the contributory negligence of a plaintiff which defeats his right to redress for the injury (Schmidt v. Cook, 4 Misc. Rep. 85; 53 N. Y. St. Repr. 84), and to say that this plaintiff was negligent in failing to keep his ■horse absolutely motionless, when he had no knowledge that the car was close upon' him, would be to hold him to all the conse-" quences of the car driver’s rash experiment. It must have been obvious to the driver that some movement of the carriage was tó be. expected when the plaintiff entered it for the purpose of leaving the place, yet, approaching from the rear and without sound of warning, the car was suffered to proceed to the point where any change of .the position of the carriage' must result in. a violent' •collision.

Here was a disregard of the duty owing from the defendant to .the plaintiff, which.the latter was not called upon to foresee and which was the sole cause of the injury from the legal standpoint of responsibility. Anselment v. Daniell, 4 Misc. Rep. 144.

. Judgment affirmed, with costs.

Daly, P. J., and McAdam, J., concur.

Judgment affirmed, with costs.  