
    Bernard Damsky, Respondent, v. The New York City Railway Company, Appellant.
    (Supreme Court, Appellate Term,
    December, 1906.)
    Street railways — Operation. —Actions — Instructions — Burden of proof — Contributory negligence.
    Where, in an action against a street railway company for damages sustained by plaintiff in a collision between his van and one of defendant’s cars, the court, by the terms of its charge to ttie jury taken in connection with its subsequent modification thereof, withdrew from the jury the consideration of the question of plaintiff’s negligence after- he had driven upon defendant’s tracks and imposed upon the defendant the burden of proving its freedom from negligence, a judgment for the plaintiff will be reversed, although, in genera] terms, the court told the jury that the burden of proving the negligence of defendant and absence of contributory negligence on the part of the plaintiff was upon the plaintiff.
    Appeal by the defendant from a judgment of the Municipal Court of the city of ¡New York, fourth district, borough of Manhattan, rendered in favor of the plaintiff.
    William E. Weaver, for appellant.
    B. Gordon, for respondent.
   Davis, J.

Appeal by defendant from a judgment for $323.60 in favor of plaintiff for injuries to plaintiff’s horse and van. Plaintiff claimed that his one-horse van was struck by defendant’s south-bound car as it was leaving the south-bound track on Third avenue between Thirty-first and Thirty-second streets. Defendant claimed that the collision took place after the van had entered upon the track and while still proceeding along the track; that, at the time it turned to enter, it was about twenty-five or thirty-five feet ahead of the car; that the car was going then at about eight miles an hour. The appellant relies solely upon its exceptions taken upon the trial. The appellant excepted to the following instruction by the court to the jury: '“ If you believe that this plaintiff and the plaintiff’s driver was going along the street, and that it was necessary for him to go on the railroad track because of a wagon obstructing the track, and that he was going along as he has testified, about two and a half houses, and was then in the act of leaving the track while the car was a considerable distance away from him, as he has testified, and that the ear struck him in the rear, he was certainly not guilty of any negligence which has contributed to the accident, and the burden, then, is upon the defendant to show that it was not their fault; because, if the car was a sufficient distance away, the plaintiff had a right to assume that the defendant would so conduct itself and manage the car as to prevent, if possible, the occurrence of an accident.”

The effect of this instruction was to take away from the jury the question of plaintiff’s negligence, and to cast upon the defendant the burden of proving its lack of negligence. After the defendant had taken exception to this part of the charge, the court sought to modify the instruction in the following language: “ It is for you'to say whether it was necessary for this plaintiff to go upon the car track while attending to his business, and if, in so doing, whether he was guilty of any negligence which in any way contributed to the accident.” While this -instruction left it to the jury to determine the question of plaintiff’s negligence in going upon the track, it still failed to leave for their consideration the important question of whether the plaintiff-was negligent while going along the track or in failing to leave it sooner. It also failed to correct the error of requiring the defendant' to prove its freedom from negligence, assuming the plaintiff to be free from contributory negligence. In general terms, the court told the jury that the burden of proving the negligence of defendant and absence of contributory negligence on the part of the plaintiff was upon the plaintiff, but the erroneous instruction referred to above could hardly fail to neutralize the effect of this general instruction. Other errors in the charge were assigned, but it is not necessary to consider them, as that already referred to requires a reversal of the judgment.

Gildebsleeve and Eitzgebald, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  