
    Maria L. Freeland, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    December, 1905.
    Negligence— injury to passenger by collision of car with truck — failure to show negligence.
    The plaintiff, a passenger in defendant’s car, was injured by a collision between the car and a truck carrying coal. The evidence showed that the car was moving slowly and liad partly passed the truck with from two to four feet clearance, when the wheel of the truck slewed on the curve of a branch track and the truck crashed into the car. The car was stopped within a foot after the collision.
    
      Held, that there was no evidence of negligence on the part of the defendant.
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of January, 1904, upon the verdict of a jury for $450, and also from an order entered in said .clerk’s office- on the 25th day of January, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      I. R. Oeland [George D. Yeomans with him on the brief], for the appellant.
    
      James C. Cropsey [Charles C. Clark with him on the brief], for the respondent.
   Rich, J.:

This action was brought to recover damages for a personal injury alleged to have been sustained through the negligence of the defendant’s servants and employees in the operation of one of its street cars, which collided with a heavily loaded coal truck. .It was charged that the defendant was negligent and careless in the management and operation of a defective car, and also negligent and careless in employing an unfit and incompetent motorman.

The plaintiff was a passenger in one of the defendant’s closed cars, and upon the trial'testified that just previous to the accident: “ I was sitting there talking; it was going fast, but still, I couldn’t tell just exactly how fast. I know the car was going' fast, but 1 don’t -know how many miles an hour. When my car got about' two blocks from the -ferry, something struck the car, and it made a terrible loud noise. I didn’t know what it,was. And then the glass and everything all splintered, and something struck me in the back, and it struck my sister in the- back Of the head. Q: What happened to you when you were struck in the back? A. It threw’ us over onto the other 'side of the car . and I struck my right knee and cut all my hands with the glass.. Before this, before-1 heard this loud crash, the car had not lessened its speed any, that I know of. Q. Can you state that it did not ? A. Ho, it was going right straight along. Q.. Afterwards, did you see what it was that struck ' the car ? A. Afterwards I had got settled on .the other side—I couldn’t — when-1-got úp off the floor — but I couldn’t tell what it was. í mean, I couldn’t tell because I didn’t see it strike. But the only thing I saw in. the -neighborhood of the car at that time was "this big, black truck., I couldn’t say how many horses it had on the truck, because I was too frightened, but I think there was three. The truck was right close against the car, at the side of the car. The truck was right against it, just so that it couldn’t help but come against it; it struck it that way. That was the side of. the car upon . which I was seated. There were three "windows and part of the woodwork of the car broken at the time.”

Upon this-evidenee the plaintiff rested her casé,, and counsel for - the defendant moved to -dismiss upon.t-he ground -that the plaintiff, had failed to show negligence on the part of the defendant, and had failed to establish a cause of action, The motion was denied and an exception taken,

The motorman of the car upon which the plaintiff was. a passenger testified that the truck was coming from Fulton ferry. “ Just as I had passed, it collided" with the side of my -car. -This' truck caught the curve, setting it into" the. side of my car.. This coal wagon and horse, when I first.saw it,, was ten feet away.from me. It was right' alongside qf the track, coming up. Until it began to slew there was room enough there for my car to go by. * * * The horses and driver had- just passed me. Then, I say, it slewed towards . the car. I came in contact with - the third stanchion of the car and broke three panes of glass. As soon as I saw this wagon slew, I stoppéd the car right "away; stopped it as quick as I could. * * * The wagon was driving about two feet away from my car.” On cross-examination he said : I didn’t / have any power on at all. After this wagón struck my car, the car did not go a foot before it stopped.”

The driver of the truck" téstified: “ I was coming up with a big 'load, up the hill, and the car was coming down on a slow gait, and just as I got to the frog, my truck slipped and catched the car windows. When I commenced to slide, the car was just right even with the frog, about a foot from the frog. * * * The truck struck the first or second window of the car; * * I had on two horses, and I was coming up the hill. Until my truck slid, the car could pass ; plenty of room.” On cross-examination he said: I was going slow ; walking slow. You can’t go fast with a big load on; just creeping along, trying to get my way up the hill. * * * I was driving about three or four feet from the track on which the car was coming. He thought he could pass me, and I could have passed him-only for the frog. I mean by the frog that there is a curve comes around and I slid on that.”

This was substantially all the evidence given on the trial relating to the accident. At the close of the evidence. the defendant’s counsel renewed his motion for a nonsuit on the ground that the plaintiff had failed to establish a cause of action and failed to show that the accident happened by reason of the negligence of the defendant. The motion was denied, and the court submitted the case to the jury upon the theory that there was sufficient evidence to warrant them in finding the defendant negligent because of the rate of speed at which the car was going, and that the motorman was negligent in not paying sufficient attention to the approach of this loaded wagon, and either stopping the car entirely or acting in such a manner as to avoid the accident.” In this I think the learned trial court was incorrect. There was no evidence that the motorman was careless or inattentive in the management of the car. He is not shown to have had any reason to anticipate a collision. The wagon was not on the car track. It was from two to four feet away from the .track. There was ample room for the car and truck to have safely passed if the wagon had not struck the curve and slewed into the car; the front of the car and wagon had passed before the wagon commenced to slew, and the speed of the car liad been reduced to such an .extent 'that it was stopped; within» a foot after the collision. It cannot be said that the approach of a heavily loaded wagon on a municipal highway, two to four feet out» side of and away from the track of a street railway," is such an indi» .’cation of apparent-danger as to charge the employees of a railway corporation with the duty of stopping a car and waiting for thé vehicle to pass. ¡

Therewas.no evidence justifying the conclusion that the car was running at" a great or unusual rate of speed ; neither was there any evidence to support the respondent’s contention that the switch was adjustable or could be set in such manner as that the wheel of a wagon coming, in contact with its rails when set one way would slide toward the track, and when- set the other way would slide away from the track, or that there was a frog, used in connection with the switch.

The judgment and order must be reversed and a new trial granted, costs- to abide the event. .' ,

Hirschberg, P. J., Bartlett and Miller, JJ., concurred.

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